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M  i  s  h  n  a  h 

A  Digest  of  the  Basic  Principles  of 
the  Early  Jewish  Jurisprudence 


Baba  Meziah  (Middle  Gate) 
Order  IV 
Treatise  II 


Translated  and  Annotated 
By 

Hyman  E.  Goldin,  LL.B. 

of  the  New  York  Bar 


G.  P.  Putnam’s  Sons 
New  York  and  London 
tTbe  Iftnfcfeerbocfcet  press 

1913 


Copyright,  1913 

BY 

HYMAN  E.  GOLDIN 


TCbe  ftnfcfeerbocber  press,  Hew  fl?orb 


X'tVUV'H 


IQ  f  A 

y.  /  fS  ,  iv  ' 

✓f"  /  ul  -( 


PREFACE 

This  work  is  an  attempt  to  acquaint  the 
reader  with  the  fundamental  principles  of  law 
laid  down  in  the  Mishnah.  It  is  not  designed 
to  give  an  exhaustive  treatment  of  the  various 
branches  of  the  law  embodied  in  the  present 
treatise.  Of  the  numerous  rules  and  theories  of 
law  laid  down  in  works  other  than  the  Mishnah, 
only  such  as  tend  to  convey  a  thorough  com¬ 
prehension  of  the  Mishnaic  principles  have 
been  given  in  the  annotations.  And  for  the 
like  reason,  no  attempt  has  been  made  to  deal 
with  the  subject  of  comparative  jurisprudence. 

The  original  arrangement  of  the  chapters 
and  the  Mishnahs  therein  contained  has  been 
preserved  in  this  work ;  for  had  a  new  arrange¬ 
ment  been  made,  in  conformity  with  modern 
logic  and  present-day  conceptions,  it  would 

cause  great  inconvenience  to  a  student  who 

•  •  • 
in 


IV 


Preface 


might  wish  to  follow  the  original  text  of  the 
Mishnah. 

As  far  as  possible,  a  literal  translation  of 
the  original  text  has  been  adhered  to.  Oc¬ 
casionally,  however,  for  one  reason  or  another, 
it  has  been  deemed  expedient  to  give  a  free 
rendering  of  certain  terms  and  expressions. 

With  reference  to  the  interpretation  of  the 
provisions  and  terms  of  the  Mishnah,  an 
attempt  has  been  made  to  follow  authoritative 
sources, — such  as  the  Gemara,  Alfasi,  Mai- 
monides  and  the  like.  In  many  instances, 
however,  the  theories  and  principles  upon 
which  certain  rules  of  law  had  been  founded 
could  not  be  elucidated  either  from  the  Mish¬ 
nah  or  from  any  of  the  commentaries  thereon. 
As  a  result,  it  has  been  impossible  to  avoid 
entirely  advancing  original  speculations. 

An  introduction  to  the  present  treatise 
has  been  prepared  with  a  view  to  prove  that 
there  was  a  certain  unity  of  thought  in  the 
mind  of  the  redactor  of  the  Mishnah  when  he 
embodied  in  the  present  treatise  the  various 
branches  of  the  law. 

In  the  Appendix  is  given  a  compendium  of 


Preface 


v 


biography  of  the  jurists  mentioned  in  this 
treatise,  in  order  to  facilitate  the  task  of  the 
student  who  reads  this  work  with  the  intention 
of  making  a  careful  study  of  comparative 
jurisprudence.  It  likewise  contains  a  glossary 
of  works,  coins,  weights  and  measures. 

The  editor  contemplates  translating  and 
annotating  all  treatises  of  the  Mishnah  that 
deal  mainly  with  jurisprudence.  The  reason 
the  editor  preferred  in  the  present  volume  to 
begin  with  the  second  treatise  of  the  Order 
Nezikin  is  that  this  treatise  is  considered 
among  scholars  versed  in  the  Talmud  to  be 
the  1 1  key  ’  ’  to  the  entire  Order. 


New  York, 

January,  1913. 


H.  E.  G. 


CONTENTS 

CHAPTER  PAGE 

Introduction  to  Baba  Meziah  .  .  i 

I. — Articles  Lost  and  Found  .  .  7 

Court  Documents  .  .  .17 

II. — Introduction  .....  28 

Articles  Lost  and  Found  ( Con¬ 
tinued )  .....  30 

Helping  in  Unloading  and  Re¬ 
loading  Animal.  ...  46 

III.  — Bailments  .....  50 

IV.  — Introduction  .....  73 

Bargain  and  Sale  of  Personalty  .  77 

V. — Introduction  .....  98 

Usury  and  Usurious  Contracts  .  99 

VI. — Contracts  of  Hiring  .  .  .122 

Liability  of  Pledgees  .  .  .132 

Removal  of  Bailment  by  Bailee  .  133 

VII. — Hiring  of  Laborers  .  .  .  .  136 

The  Four  Bailments  .  .  .  142 

Conditions  .  .  .  .  .146 

•  • 

Vll 


vm 


CONTENTS 


CHAPTER  PAGE 

VIII. — Borrowing  of  Animals  .  .  151,  157 

Evidence  .  .  .  .  152, 158 

Ownership  in  Trees  and  not  in 
the  Soil  .....  161 

Landlord  and  Tenant  .  .  .162 

IX. — Letting  Land  to  Farm  .  .  .168 

Wages . 177 

Pledges  .....  181 

X. — Rights  of  Upper  and  Lower  Owners 

185, 187, 193 

Rights  of  Upper  Tenant  .  .186 

Use  of  Public  Thoroughfares  .  192 

Appendix.  .....  195 

Index . 199 


Mishnah 


r 


MISHNAH 


INTRODUCTION  TO  BABA  MEZIAH 

Baba  Meziah  (Middle  Gate)  is  the  second 
treatise  of  the  Order  Nezikin  (Damages), 
the  fourth  of  the  six  Orders  into  which  the 
Mishnah,  in  its  present  form,  was  compiled  by 
Rabbi  Judah  ha-Nasi  (the  Prince)  about  the 
year  219  c.  e.  It  is  the  second  of  the  three 
Gates  forming  the  first  three  treatises  of  the 
fourth  Order. 

This  treatise  deals  with  the  acquisition  and 
transfer  of  title  to  personal  property .  Per¬ 
sonal  property  includes  goods,  money  and  all 
other  descriptions  of  movable  property,  which 
may  accompany  the  owner's  person  wherever 
he  may  be. 

Property  in  chattels  may  be  either  in  pos¬ 
session  ,  i.  e.y  when  a  man  has  not  only  the  right 


2 


Mishnah :  Baba  Meziah 


to  enjoy,  but  has  the  actual  enjoyment  of,  the 
chattel ;  or  it  is  in  action ,  where  a  man  has  only 
a  right  of  ownership,  without  any  occupation 
or  enjoyment.  The  former,  or  property  in 
possession,  is  divided  into  two  classes,  absolute 
and  qualified  property. 

Property  in  absolute  possession  is  where  a 
man  has,  solely  and  exclusively,  the  right  and 
also  the  occupation  of  any  chattel;  so  that  it 
cannot  be  transferred  from  him  or  cease  to  be 
his,  unless  by  his  own  act  or  default  on  his 
part. 

Property  is  of  a  qualified  or  special  nature 
when,  on  account  of  the  peculiar  circum¬ 
stances  of  the  owner,  there  is  no  absolute 
ownership.  In  the  case  of  bailment,  or  de¬ 
livery  of  goods  to  another  for  a  particular  pur¬ 
pose,  there  is  no  absolute  property  vested  in 
either  the  bailor  or  the  bailee.  For  the  bailor 
has  only  the  right  to,  and  not  the  immediate 
possession  of,  the  chattel  bailed,  and  the  bailee 
has  the  possession  of  it  and  only  a  temporary 
right  thereto,  but  it  is  a  qualified  property 
vested  in  both  of  them. 

Property  in  action  is  where  a  man  has  not 


Introduction 


3 


the  occupation  of,  but  merely  a  right  to  occupy, 
the  thing.  The  possession  thereof  may,  how¬ 
ever,  be  recovered  by  a  suit  or  action  at  law; 
hence,  the  thing  so  recoverable  is  called  a 
thing  or  chose  in  action.  Thus  in  the  case  of  a 
sale,  where  the  price  for  the  subject-matter  of 
the  sale  is  not  paid  in  ready  money,  the  vendee 
becomes  indebted  to  his  bailor  for  the  sum 
agreed  upon,  and  the  vendor  has  a  chose  in 
action  as  a  result  of  such  a  debt.  In  bail¬ 
ment,  if  the  bailee  loses  or  detains  the  thing 
bailed  to  him,  he  becomes  indebted  to  his 
bailor  to  the  value  of  such  thing.  The  reason 
for  such  indebtedness  is  his  implied  or  express 
contract  either  to  execute  the  trust  reposed  in 
him  (Sect.  2,  infra),  or  repay  the  bailor  the 
value  of  the  thing  bailed.  In  short,  a  chose 
in  action  is  a  determinate  sum  of  money  due  to 
any  person,  by  reason  of  a  certain  contrac¬ 
tual  relation  or  obligation,  but  is  not  paid, 
remaining  in  action  merely. 

Furthermore,  property  in  chattels,  as  well  as 
in  land,  may  be  either  corporeal  or  incorporeal. 
Corporeal  property  consists  of  objects  affect¬ 
ing  the  senses ;  such  as  may  be  seen  and  han- 


4 


Mishnah :  Baba  Meziah 


died  by  the  body.  Incorporeal  property  is  not 
the  object  of  sensation,  can  neither  be  seen  nor 
handled,  but  is  the  creation  of  the  mind,  exist¬ 
ing  in  thought  only.  Incorporeal  property 
consists  principally  of  easements .  (Vide  Sect. 
5,  infra) . 

The  present  treatise  speaks  of  acquisition  of 
title  to  personal  property  by  occupancy  and  by 
contract. 

Property  in  goods  or  chattels  may  be  ac¬ 
quired  by  occupancy  either  of  objects  ferae 
naturae ,  or  of  movables  which  are  found  upon 
the  surface  of  the  earth,  and  are  supposed  to 
have  been  abandoned  by  the  last  proprietor, 
and  as  such  are  returned  into  common  stock; 
they,  therefore,  belong,  as  in  a  state  of  nature, 
to  the  first  fortunate  finder,  who  thereby  be¬ 
comes  the  first  occupant  (Chapters  I  and  II). 

The  most  usual  contracts,  whereby  the  right 
of  possession  or  that  of  a  chose  in  action  may  be 
acquired,  are:  i.  That  of  sale  and  exchange. 
2.  That  of  bailment  (including  hiring,  bor¬ 
rowing  and  pledges).  3.  That  of  employ¬ 
ment.  4.  That  of  chattels  real.  5.  That 
of  easement. 


Introduction 


5 


1 .  Sale  and  exchange  are  transfers  of 
property  from  one  man  to  another,  in  return 
for  some  consideration  (Chapter  IV ;  see  also 
Introduction  to  l.  c.). 

2.  Bailment,  including  hiring  and  borrow¬ 
ing  of  chattels,  is  a  delivery  of  goods  in  trust, 
upon  a  contract  either  express  or  implied, 
that  the  trust  shall  be  faithfully  executed  on 
the  part  of  the  bailee,  and  that  restitution  of 
the  thing  bailed  shall  be  made  by  him  as  soon 
as  the  purpose  of  the  bailment  shall  have  been 
carried  out  (Chapters  III,  VIII  and  part  of 
Chapter  VI).  The  bailee  or  the  bailor  is  en¬ 
titled  to  an  action,  in  case  the  goods  bailed 
be  damaged  or  taken  away  while  in  the  for¬ 
mer's  possession:  the  bailee,  on  account  of  his 
immediate  possession ;  the  bailor,  because  the 
possession  of  the  bailee  is  his  possession  also. 

Pignus  or  pledge  is  where  the  thing  bailed  is 
given  as  security  for  a  debt;  when  a  person 
borrows  money,  and  gives  some  article  of  value 
to  be  held  as  security  (Chapter  VIII). 

3.  Employment  is  a  contract  whereby  a 
man,  in  consideration  of  some  compensation 
given  or  promised  to  be  given  by  another  man, 


6 


Mishnah :  Baba  Meziah 


agrees  to  perform,  or  actually  performs,  certain 
work,  labor  or  services  (Chapters  VI  and  VII). 

4.  Contracts  involving  chattels  real  are: 
when  one  man,  by  reason  of  a  certain  considera¬ 
tion,  transfers  temporary  possession  of  a  thing 
which  is  realty  and  cannot  be  classed  as  per¬ 
sonal  chattels,  such  as  fields,  houses,  etc.  In 
other  words,  chattels  real  are  such  as  partake 
of  the  nature  of  real  property  or  arise  there¬ 
from  (Chapter  IX  and  part  of  Chapter  X). 

5.  Easement  is  where  the  owner  of  one 
tenement,  called  the  dominant  tenement, 
acquires  a  right,  by  contract  or  otherwise, 
to  make  use  of  the  tenement  belonging  to 
another  man,  called  the  servient  tenement 
(Chapter  X). 

Any  contract  which  is  effected  for  the  pur¬ 
pose  of  transferring  a  right  or  a  property  of  any 
nature,  although  it  is  created  by  the  voluntary 
act  of  the  contracting  parties,  may  be  of  such  a 
character  as  to  render  it  illegal  and  conse¬ 
quently  not  obligatory  upon  the  parties;  e.  g.y 
when  the  contract  involves  a  transaction 
which  cannot  be  sanctioned  by  law  for  the 
reason  that  it  is  usurious  (Chapter  V) . 


CHAPTER  I 

ARTICLES  LOST  AND  FOUND— COURT 

DOCUMENTS1 

Mishnah  I.  Two  persons  (coming  to  a 
court  of  justice)  hold  a  garment,  and  one  of 
them  says:  “I  found  it,”  and  the  other  one 
says:  “I  found  it.”  If  one  of  the  claimants 
says:  “The  whole  of  it  is  mine,”  and  the 
other  one  says:  “The  whole  of  it  is  mine,” 
each  has  to  take  an  oath  that  no  less  than  one- 
half  of  such  garment  belongs  to  him,  and  the 
garment  (or  the  value  thereof)  is  divided 
equally  between  both  litigants  (i) ;  and  if  one  of 

(i).  In  the  Jewish  system  of  jurisprudence,  any 
unsworn  statement  made  in  court  in  support  of  a 
claim  or  in  denial  thereof,  had  the  same  weight  in  evi¬ 
dence  as  the  sworn  testimony  of  a  witness  in  the  mod¬ 
ern  system  of  jurisprudence.  The  veracity  of  even  an 
unsworn  statement  was  presumed  as  a  matter  of  law, 

1  Vide  Introduction  to  Chapter  II,  infra. 

7 


8 


Mishnah :  Baba  Meziah 


the  claimants  says:  “ The  whole  of  it  is  mine,  ” 
and  the  other  one  says:  “Half  of  it  is  mine,’' 

because  every  person  was  favored  with  the  pre¬ 
sumption  of  honesty,  that  he  would  not  intentionally 
violate  the  commandment  of  the  Pentateuch  (Ex.  xx, 
1 6) :  “Thou  shalt  not  bear  false  witness  against  thy 
neighbor.  ” 

An  oath  was  administered  to  a  defendant  only  then 
when  there  was  a  presumption  existing  in  favor  of  the 
plaintiff.  The  effect  of  the  oath  taken  by  the  de¬ 
fendant  was  to  rebut  such  presumption,  to  balance  the 
evidence  produced  on  the  part  of  the  plaintiff,  and  to 
entitle  the  defendant  to  a  recovery,  since  the  latter,  in 
order  to  be  entitled  to  a  recovery,  need  come  forward 
with  evidence  sufficient  only  to  balance,  and  not  to 
outweigh ,  the  evidence  produced  by  the  plaintiff. 
(For  a  full  discussion  of  the  oath,  vide  Shebuoth.) 

In  the  case  as  presented  in  the  text,  it  was  essential 
that  both  of  the  parties  to  the  controversy  should  be  in 
actual  possession  of  the  article  in  dispute,  in  order 
that  either  one  of  them  should  be  entitled  to  obtain 
any  part  thereof  by  an  oath.  For,  if  only  one  of  the 
parties  has  actual  possession  of  the  article,  and  the 
other  party  merely  makes  a  claim  of  having  a  right  to 
the  possession  thereof,  the  latter,  as  party  plaintiff, 
cannot  by  a  mere  oath  obtain  a  recovery  of  his  claim. 
It  is  a  well  established  principle  of  law  in  Jewish  juris¬ 
prudence  that  possession  is  presumptive  evidence  of 
ownership;  i.  e.,  it  is  presumed  as  a  matter  of  law  that, 
unless  proven  to  the  contrary,  if  a  man  has  immediate 
possession  of  a  thing,  he  is  lawfully  entitled  to  the 
ownership  thereof  ( Shebuoth  32b;  Baba  Bathra  33b). 


Articles  Lost  and  Found 


9 


then  the  one  who  claims  title  to  the  entire  gar¬ 
ment  shall  take  an  oath  that  no  less  than  three- 

If,  therefore,  A  claims  title  to  a  certain  thing  of  which 
he  has  immediate  possession,  and  B  too  lays  claim  to 
the  ownership  of  such  thing,  A  is  entitled  to  the  entire 
article  in  dispute,  as  he  is  favored  with  the  presump¬ 
tion  of  possession  ( Gemara 1  6a;  Alfasi;  Maimonides, 
Laws  of  Pleading,  Chapter  ix,  Law  13).  B  cannot  be 
entitled  to  a  recovery  by  taking  an  oath  to  substan¬ 
tiate  his  claim,  because  he  is  the  plaintiff  in  the  case 
and  therefore  has  the  burden  of  proving  his  side  by  a 
preponderance  of  evidence  {Baba  Kama  46a) .  As  the 
effect  of  an  oath,  in  law,  would  be  to  merely  rebut 
the  presumption  of  immediate  possession  existing  in 
favor  of  A,  it  would  only  balance ,  but  not  outweigh 
the  evidence  of  A’s  presumption. 

The  oath  imposed  upon  the  parties  in  the  present 
case  is  purely  rabbinical,  for  according  to  the  Mosaic 
Law  the  parties  would  have  to  divide  the  article  in  con¬ 
troversy  without  taking  an  oath,  as  the  contention  of 
each  of  them  is  supported  by  the  presumption  of  pos¬ 
session.  The  object  of  imposing  such  an  oath  upon  the 
parties  is  to  prevent  people  from  forcibly  obtaining 
possession  of  articles  belonging  to  their  neighbors  and 
setting  up  a  fictitious  claim  thereto,  which  might 
result  if  a  recovery  were  permitted  without  the 
administration  of  an  oath  {Gemara  5b).  It  is  a  well 
established  principle  of  law  in  Jewish  jurisprudence 
that  a  person  who  might  attempt  obtaining  money 

xThe  citation  Gemara  in  this  work  refers  to  the  present 
treatise,  Baba  Meziah. 


10 


Mishnah :  Baba  Meziah 


quarters  belong  to  him,  and  the  one  who 
claims  title  to  one-half  shall  take  an  oath  that 
no  less  than  one-quarter  belongs  to  him;  the 

from  his  neighbor  without  just  cause  is  not  necessarily 
to  be  suspected  of  false  swearing  (/.  c.).  The  law, 
therefore,  presumes  that  a  man  will  refrain  from  swear¬ 
ing  falsely,  although  he  is  unscrupulous  otherwise. 

Particularly  should  an  oath  be  imposed  upon  the 
parties  when  their  controversy  is  founded  upon  a  claim 
of  title  to  a  lost  article.  For  a  man,  although  honest 
otherwise,  might  upon  seeing  some  one  pick  up  a  lost 
article,  argue:  “My  neighbor  has  invested  no  money 
in  such  article,  I  too  will  take  hold  of  it  and  contend 
that  both  of  us  have  found  it”  ( Gemara  2b).  The 
law,  presuming  each  of  the  claimants  to  be  honest 
otherwise,  imposes  an  oath  upon  him,  which  he  would 
refrain  from  taking  if  his  claim  be  unfounded. 

The  reason  each  one  of  the  claimants  has  to  take 
an  oath  that  no  less  than  one-half  of  the  garment  be¬ 
longs  to  him  is  that  should  he  swear  that  he  has  a  right 
to  one-half  of  the  garment,  it  will  directly  conflict  with 
his  previous  statement  that  he  is  entitled  to  the  owner¬ 
ship  of  the  entire  garment.  The  court,  being  reluctant 
to  compel  the  litigant  to  contradict  directly  his  own 
statement,  requires  him  to  swear  that  no  less  than  one- 
half  of  the  garment  belongs  to  him ,  which  can  be  con¬ 
strued  to  mean:  “As  for  myself,  I  still  uphold  my 
previous  contention  that  I  am  entitled  to  the  entire 
garment.  According  to  the  opinion  of  the  court,  how¬ 
ever,  that  as  much  credence  is  due  to  the  claim  made 
by  my  opponent  as  to  mine,  I  take  oath  that  surely 


Articles  Lost  and  Found 


ii 


former  takes  three-quarters  of  the  garment, 
and  the  latter  one-quarter  (2). 

Mishnah  II.  If  two  persons  ride  on  an 
animal,  or  one  of  them  rides  on  it  and  the  other 
one  leads  it,  and  one  says:  “The  whole  of  it  is 
mine,”  and  the  other  one  says:  “The  whole 
of  it  is  mine,  ”  each  has  to  take  an  oath  that  no 
less  than  one-half  of  the  animal  belongs  to 
him,  and  both  of  them  divide  it  equally  (3). 

no  less  than  one-half  of  the  garment  belongs  to  me” 
(Gemara  5b) . 

(2) .  In  the  latter  case,  A  claims  title  to  the  entire 
garment  because  he  contends  that  he  himself  has  ob¬ 
tained  possession  thereof  a  priori ,  and  B  lays  claim  to 
one-half  of  the  garment,  contending  that  both  of  them 
have  obtained  possession  thereof  at  one  and  the  same 
time.  B  admits  that  one-half  of  the  garment  belongs 
to  A,  and  their  controversy  is  for  the  remaining  half. 
They  consequently  have  to  take  an  oath,  as  provided 
for  in  the  previous  case  mentioned  in  the  text,  and 
they  divide  that  half  equally  between  themselves. 

(3) .  When  one  claims  title  to  a  lost  article,  he 
must  prove  that  he  has  obtained  possession  thereof 
a  priori.  Thus,  in  order  to  obtain  that  possession,  he 
must  perform  such  an  act  as  would  be  recognized  in 
law  as  sufficient  to  vest  title  in  the  vendee  in  cases  of 
bargain  and  sale.  ( Vide  Introduction  to  Chapter  IV, 
infra.) 

The  principle  of  law  involved  in  this  Mishnah  is 


12 


Mishnah :  Baba  Meziah 


When  they  admit  (that  both  of  them  have 
obtained  possession  at  one  and  the  same 
time),  or  they  have  witnesses  (to  testify  to 
that  effect),  they  divide  the  article  in  dispute 
without  taking  the  prescribed  oath  (4). 

that  when  one  finds  a  lost  animal  and  rides  on  it,  such 
an  act  constitutes  the  necessary  possession  which  must 
be  acquired  in  order  to  obtain  title  to  a  lost  article. 
It  stands  also  for  the  further  principle  that  the  act  of 
leading  an  animal  is  analogous  to  that  of  riding  on  it ; 
‘‘leading”  constituting  legal  possession  ( Gemara  8a; 
Rashi  to  2a). 

(4) .  Maimonides  in  his  Commentary  on  the  Mishnah 
says  that  the  parties  to  the  controversy  in  this  case  had 
commenced  legal  action  before  a  court,  and  a  decision 
had  been  rendered  that  they  must  take  the  oath  pro¬ 
vided  for  by  law  in  such  a  case  and  divide  the  article 
equally.  Before,  however,  the  oath  was  actually 
administered,  they  made  an  admission,  or  procured 
witnesses  to  testify  to  the  effect  that  both  of  them  had 
obtained  possession  of  the  lost  article  at  one  and  the 
same  time.  The  apparently  unnecessary  rule  of  law 
laid  down  in  this  Mishnah,  then,  stands  for  the  prin¬ 
ciple  that,  if  an  admission  is  made,  or  witnesses  are 
procured,  by  the  parties  subsequent  to  the  res  adjudi - 
cata  ( i .  e.,  subsequent  to  the  court’s  adjudication  of 
the  case),  it  has  the  effect  of  annulling  the  decision 
rendered. 

The  Gemara  (p.  8a)  infers  from  the  rule  of  law 
stated  in  the  Mishnah  that  when  A  takes  a  lost  arti¬ 
cle  into  his  possession  with  the  view  of  obtaining  title 


Articles  Lost  and  Found 


13 


Mishnah  III.  A  man,  riding  on  an  animal, 
sees  a  lost  article  (lying  on  the  ground  near¬ 
by)  and  says  to  his  neighbor:  “Give  it  to  me.  ” 
The  latter  picks  it  up  and  says :  “  I  myself  have 
acquired  title  to  it;”  then  title  vests  in  him. 
If,  however,  after  delivering  it  (to  the  supposed 
principal),  he  says:  “I  myself  have  acquired 

thereby  on  behalf  of  B,  the  latter  acquires  title  to 
the  lost  article  by  reason  of  A’s  possession,  although 
he  has  never  authorized  A  to  act  for  him  as  his  agent. 
Otherwise,  the  two  litigants,  in  the  case  stated  in 
the  text,  would  be  unable  to  acquire  joint  own¬ 
ership  to  a  lost  article  even  when  they  admit  that 
both  of  them  have  picked  it  up  at  one  and  the 
same  time,  as  neither  authorized  the  other  to  act 
as  his  agent.  That  part  of  the  article,  therefore, 
which  is  in  the  possession  of  one  of  the  parties, 
would,  in  the  eyes  of  the  law,  be  considered  as  lying 
upon  the  ground  as  far  as  the  other  party  is  con¬ 
cerned,  and  vice  versa.  Such  acquisition  of  posses¬ 
sion  on  the  part  of  the  litigants  would  not  suffice  to 
vest  title  in  them  either  severally  or  jointly,  because 
the  law  is  that  one  must  acquire  possession  of  the  whole 
of  the  lost  article  to  the  exclusion  of  others  in  order  to 
obtain  title  thereto.  But  if  one  picks  up  only  a  part 
of  the  lost  article,  while  the  remaining  part  lies  upon 
the  ground,  such  an  act  does  not  constitute  legal  pos¬ 
session,  and  consequently  the  one  who  subsequently 
obtains  possession  of  the  whole  of  such  lost  article  is 
entitled  to  priority. 


Mishnah :  Baba  Meziah 


14 

title  to  it  first,”  his  claim  is  of  no  effect 
whatever  (5). 

(5) .  In  the  Jewish  law,  the  relation  of  principal  and 
agent  can  be  created  either  by  the  express  consent  of 
the  agent  to  become  such,  or  by  the  acquiescence  of 
such  agent  as  indicated  by  his  conduct. 

In  the  present  case,  A  requests  B  to  become  his  agent 
for  the  purpose  of  giving  a  lost  article  to  him.  Before 
B  actually  complies  with  the  request  of  A,  the  pre¬ 
sumed  principal,  and  before  he  gives  such  article  to 
him,  there  is  nothing  to  indicate  his  intention  or  ac¬ 
quiescence  to  become  A’s  agent.  His  contention, 
that  he  picked  up  the  lost  article  for  himself,  is  there¬ 
fore  well  founded.  But  after  he  actually  delivers  such 
article  to  A,  he  cannot  then  turn  around  and  say:  “I 
never  intended  to  become  your  agent,  and  I  picked  up 
the  article  not  in  order  to  comply  with  your  request 
and  to  become  your  agent,  but  I  picked  it  up  with  the 
view  of  obtaining  title  to  it  for  myself.  ”  His  conduct, 
in  executing  the  act  which  the  agency  called  for,  clearly 
indicates  his  assent  to  become  A’s  agent  for  that  par¬ 
ticular  purpose;  for  how  are  we  able  to  divulge  one’s 
secret  intents  otherwise  than  by  his  conduct  ? 

When,  however,  A  requests  B  to  become  his  agent 
for  the  purpose  of  picking  up  a  lost  article  for  him, 
with  the  view  of  obtaining  title  to  it  by  means  of  such 
agency,  and  B,  without  saying  anything  to  the  con¬ 
trary  and  apparently  in  compliance  with  A’s  request, 
does  pick  it  up,  his  silence  in  such  a  case  indicates  his 
acquiescence  to  become  A’s  agent  ( Gemara  10a). 
The  law  in  certain  instances  requires  a  man  to  speak, 
and  when  he  does  not,  he  is  silent  at  his  own  peril . 


Articles  Lost  and  Found 


15 

Mishnah  IV.  If  a  man  sees  a  lost  arti¬ 
cle  and  falls  on  it,  and  at  the  same  time  an¬ 
other  one  comes  along  and  seizes  it,  the  latter 
acquires  title  thereto  (6).  When  a  man  sees 
people  running  after  a  lost  article  (which  was 
in  his  field),  after  a  lame  stag  or  after  un¬ 
fledged  pigeons,  and  says:  “My  field  shall 
acquire  title  for  me,”  his  field  vests  title  in 
him  (7).  If,  however,  the  stag  was  running 
in  its  natural  way,  or  the  pigeons  were  fledged, 
and  he  says:  “My  field  shall  acquire  title  for 
me,  ”  his  saying  is  of  no  effect  whatsoever  (8). 

(6)  .  The  mere  act  of  falling  upon  a  lost  article  does 

not  constitute  the  necessary  taking  possession  thereof. 
The  one  who  fell  upon  the  lost  article  cannot,  there¬ 
fore,  obtain  title  thereto  in  priority  to  the  one  who 
took  actual  possession  thereof .  ( Vide  n.  3,  supra.) 

(7)  .  Title  vests  in  the  owner  of  the  field  in  this  case, 
because  his  field  is  considered  in  law  as  his  possession. 
It  is,  however,  essential  in  such  a  case  that  the  field  be 
well  guarded,  by  fence  or  otherwise,  and  if  it  is  not 
well  guarded,  it  is  necessary  that  the  owner  shall  stand- 
nearby  and  be  in  a  position  to  obtain,  in  person,  im¬ 
mediate  possession  of  the  lost  article.  If  neither  of  the 
above  requisites  exists,  a  man’s  field  does  not  con¬ 
stitute  his  possession  for  the  purpose  of  acquiring  title 
to  a  lost  article  ( Gemara  1  ia) . 

(8) .  It  is  of  vital  importance  in  cases  of  animals 


i6 


Mishnah :  Baba  Meziah 


Mishnah  V.  The  articles  found  by  a 
man’s  minor  son  or  daughter  (9),  or  by  his 
Canaanite  bondman  or  bondwoman,  or  by  his 
wife ,  belong  to  him  (10).  The  articles  found  by 
a  man’s  son  or  daughter  who  is  of  age,  or  by 
his  Jewish  man-servant  or  maid-servant,  or 
by  his  wife  whom  he  has  divorced,  although  he 
has  not  paid  her  (the  amount  due  under)  their 
contract  of  marriage,  belong  to  the  finder. 

ferae  naturae  that  the  owner  of  the  field  shall  either 
obtain  absolute  control  of  the  animal,  or  that  he  shall 
be  in  a  position  to  obtain  immediate  control  thereof,  in 
order  to  acquire  title  thereto.  Otherwise,  the  animal 
cannot  be  considered  to  be  in  his  possession,  even  when 
it  is  in  his  field.  The  condition  of  the  stag  or  that  of 
the  pigeons,  as  stated  in  the  Mishnah  herein,  is  simply 
illustrative  as  to  when  one  is  generally  in  a  position  to 
obtain  control,  but  is  of  no  moment  ( Gemara  12a). 

(9) .  The  Gemara  (p.  12b)  says  that  the  rule  of  law 
laid  down  in  this  Mishnah  is  not  to  be  literally  con¬ 
strued.  The  age  of  the  son  or  daughter  is  absolutely 
immaterial.  If  a  child  is  not  supported  by  his  parents, 
the  articles  he  finds  are  his  even  when  a  minor ;  if  he  is 
supported  by  his  parents,  the  articles  he  finds  belong  to 
the  parents  even  when  of  age  (Alfasi;  Maimonides, 
Laws  of  Lost  Articles ,  Chapter  xvii,  Law  13). 

(10) .  This  rule  of  law  had  been  enacted  by  the 
Rabbis  in  order  to  preserve  peace  between  husband 
and  wife,  and  parent  and  child  ( Gemara  12b). 


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Mishnah  VI.  If  a  person  finds  a  docu¬ 
ment  of  indebtedness  which  contains  a  lien 
clause,  he  shall  not  surrender  it  (to  either 
party  named  therein) ,  because  the  court  will  en¬ 
force  the  document  (against  purchasers  of  the 
debtor's  real  property)  (11).  If,  however,  the 

(11).  When  a  document,  made  by  a  debtor  to  his 
creditor,  sets  forth  that  the  debt  shall  be  satisfied 
from  the  real  property  owned  by  the  debtor,  the  credi¬ 
tor  acquires  thereby  a  lien  on  all  the  realty  owned  by 
the  debtor  at  the  time  such  document  is  executed. 
If  the  debtor  sells  such  property  before  he  satisfied  the 
debt,  the  creditor  may  follow  it  into  the  hands  of  the 
purchasers,  as  they  are  presumed  to  have  had  knowl¬ 
edge  of  the  existence  of  the  document  and  the  lien 
that  it  imposes  upon  the  debtor’s  real  property  in 
favor  of  the  creditor. 

The  act  of  executing  a  document  of  indebtedness  in 
open  court,  which  also  required  the  attestation  of  two 
or  more  witnesses,  had,  in  those  days  when  people  as  a 
rule  lived  in  small  communities,  the  same  effect  as  the 
modern  system  of  recording  encumbrances  upon  real 
property,  in  that  it  gave  notice  to  the  world  of  the  ex¬ 
istence  of  such  an  encumbrance.  To  a  purchaser, 
therefore,  who  bought  the  property,  so  encumbered, 
from  the  debtor,  before  the  debt  due  by  virtue  of  the 
document  was  satisfied,  the  principle  of  caveat  emptor 
(let  the  buyer  beware)  is  applicable.  Such  purchaser 
had  the  remedy  of  seeking  redress  against  his  grantor, 
if  the  property  was  deeded  to  him  with  warranties 


i8 


Mishnah :  Baba  Meziah 


lien  clause  is  omitted  in  the  document,  the 
finder  shall  surrender  it,  because  the  court  will 
not  enforce  it  (against  purchasers  of  the 
debtor’s  real  property).  This  is  the  opinion 

that  it  had  been  free  from  encumbrances  ( Gemara 
14a). 

In  the  Mishnah  now  under  discussion,  the  document 
is  not  surrendered  to  either  party  therein  named,  on 
grounds  of  public  policy,  even  when  the  creditor  claims 
that  he  never  received  payment  for  the  debt  mentioned 
in  the  document,  and  the  debtor  admits  that  he  did  not 
pay.  It  is  presumed  as  a  matter  of  law  that  the  debt 
is  paid,  but  that  the  debtor  entered  into  a  collusion 
with  his  creditor  to  seize  the  property  conveyed  by 
him  and  to  divide  the  same  among  themselves 
{Gemara  13a;  Alfasi;  Maimonides,  Laws  of  Lost 
Articles ,  Chapter  xvm,  Law  1).  The  debtor’s 
admission  of  liability  cannot  be  taken  into  con¬ 
sideration  in  this  case,  because  it  is  probable  that 
he  holds  a  release  from  the  debt,  and  that  he  con¬ 
veyed  the  property  in  question  without  warranties 
that  it  had  been  free  from  encumbrances.  Such  an 
admission  would,  in  such  a  case,  consequently  not  be 
against  his  own  interest,  because  neither  could  the 
debt  be  collected  from  him  again  nor  would  he  be  held 
liable  to  his  grantees  in  case  the  property  was  seized 
by  the  creditor.  It  is,  therefore,  required  that  the 
creditor,  in  order  to  be  entitled  to  seize  the  property  to 
satisfy  the  debt,  come  forward  with  evidence  sufficient 
to  rebut  the  presumption  thus  raised  in  favor  of  the 
grantees. 


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i9 


of  Rabbi  Meir.  The  sages  (12),  however,  say: 
1 1  The  finder  shall  not  surrender  the  document 
in  any  event,  because  the  court  will  enforce  it 
(against  purchasers  of  the  debtor’s  land)  ”  (13). 

The  reason  the  presumption  of  payment  and  col¬ 
lusion  is  raised  in  this  case  is,  as  stated  in  the  Gemara 
12b,  because  of  the  fact  that  the  document  was  lost. 
The  system  of  recording  obligations  or  encumbrances 
of  any  nature  was  not  in  practice  under  the  Jewish 
procedure.  The  sole  evidence,  therefore,  of  any 
obligation  or  encumbrance  was  the  document  in 
itself.  The  presumption  consequently  was  that  had 
the  document  not  been  paid,  the  creditor  would  have 
taken  the  greatest  precaution  not  to  lose  the  same 
(Rashi  to  l.  c.):  for  valuable  articles  are  less  frequently 
lost  than  valueless  ones. 

The  document  cannot  likewise  be  surrendered  to 
either  one  of  the  parties  thereto  who  is  able  to  de¬ 
scribe  the  marks  of  identification  such  document  bears, 
for  the  reason  that  the  debtor  as  well  as  the  creditor  is 
acquainted  with  such  marks  of  identification,  and 
therefore  it  cannot  be  ascertained  thereby  whether  the 
creditor  has  lost  it  and  it  is  not  paid,  or  the  debtor  has 
lost  it  and  it  is  paid.  (  Vide  note  18,  infra.) 

(12) .  By  the  term  sages  is  meant  the  majority  of 
the  school ;  hence,  the  weight  of  opinion. 

(13) .  The  opinion  of  the  sages  was  that,  unless  there 
is  an  express  provision  to  the  contrary,  every  docu¬ 
ment  of  indebtedness  creates  a  lien  upon  the  debtor’s 
real  property,  owned  by  him  at  the  time  such  docu¬ 
ment  is  executed.  The  omission  of  such  lien  clause, 


20 


Mishnah:  Baba  Meziah 


Mishnah  VII.  If  one  finds  a  bill  of 
divorce,  a  deed  of  manumission,  a  will,  a  deed 
of  gift,  or  a  release  from  a  debt,  he  shall  not 
surrender  it  (to  the  party  therein  named),  for 
it  is  probable  that  it  was  indeed  executed,  but 
the  party  who  wrote  it  bethought  himself  and 
did  not  deliver  it  (to  the  person  for  whose 
benefit  it  was  written)  (14). 

according  to  their  opinion,  is  due  to  a  mere  mistake  on 
the  part  of  the  scribe,  and  hence  is  of  no  legal  con¬ 
sequence;  for  there  is  no  doubt  that  the  creditor  who 
took  the  document  had  intended  that  the  amount 
loaned  by  him  should  be  secured  by  all  the  property  of 
the  debtor  ( Gemara  14a).  Their  opinion  is  the  pre¬ 
vailing  law  (Alfasi;  Maimonides,  Laws  0}  Lost  Articles , 
Chapter  xvin,  Law  1). 

(14).  The  documents  enumerated  in  this  Mishnah 
are  of  no  validity  without  actual  delivery,  and  if,  there¬ 
fore,  no  delivery  is  proven,  shall  not  be  surrendered  to 
the  parties  for  whose  benefit  they  were  written.  If, 
however,  the  one  who  has  executed  such  documents 
consents  to  have  them  delivered  to  the  parties  therein 
named,  the  finder  does  comply  with  his  request. 

The  last  named  rule  of  law,  however,  is  subject  to 
the  following  modifications : — 

When  a  deed  of  gift  is  found,  it  shall  not  be  surren¬ 
dered  to  the  donee  named  therein,  on  grounds  of  public 
policy,  even  when  instructions  to  that  effect  are  given 
by  the  donor.  The  law  is  well  established  that  a  per- 


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21 


Mishnah  VIII.  If  one  finds  a  document 
relating  to  legal  assessment  (i.e.,  the  court’s 

son  cannot  revoke  a  conveyance  made  by  him  in  the 
nature  of  a  gift,  and  if  several  donees  are  possessed  of 
deeds  of  gift  for  one  and  the  same  piece  of  property, 
executed  by  one  and  the  same  donor,  or  by  those  who 
immediately  derive  their  title  thereto  from  such 
donor,  it  is  the  one  who  is  possessed  of  the  deed 
executed  and  delivered  to  him  first  that  succeeds. 
When,  therefore,  a  deed  of  gift  is  found,  it  is  not  sur¬ 
rendered  to  the  donee  therein  named,  even  when  the 
donor  consents  to  such  a  surrender,  because  such  pres¬ 
ent  delivery  may  tend  to  prejudice  subsequent  donees 
in  this  wise:  A,  the  donor,  originally  intended  to  con¬ 
vey,  by  gift,  the  property  described  in  the  deed  found, 
to  B,  the  donee  therein  named.  Thereupon,  and  be¬ 
fore  A  delivered  such  deed  to  B,  he  executed  and 
delivered,  at  a  subsequent  date,  another  deed  of  gift  for 
the  same  piece  of  property  to  C.  A,  the  donor,  wish¬ 
ing  to  revoke  such  conveyance  made  to  C  and  not  be¬ 
ing  able  to  do  so,  consents  that  the  finder  shall  deliver 
the  deed,  found  by  him,  to  B,  the  first  intended  donee. 
B  will  then  produce  his  deed,  which  bears  a  prior  date 
than  the  one  executed  and  delivered  to  C,  and  claim 
that  the  delivery  of  such  deed  was  made  to  him  imme¬ 
diately  upon  the  execution  thereof;  thus  recovering 
the  property  conveyed  to  C,  who  is  legally  entitled 
thereto,  as  the  delivery  of  the  deed  to  C  was  in  reality 
made  by  the  donor  prior  to  the  delivery  of  the  deed  to 
B.  A  and  B  will  then  divide  between  themselves  the 
property  so  seized  from  C.  The  court,  therefore,  says 
to  the  donor:  “ If  you  desire  that  title  to  the  property 


22  Mishnah  :  Baba  Meziah 

valuation  of  the  defendant’s  property  to  sat- 

described  in  the  conveyance  shall  vest  in  B ,  who  is  the 
donee  therein  named,  why  not  convey  it  to  him  now? 
And  if  you  executed  and  delivered  another  deed  of  gift 
to  another  donee  for  the  same  property,  prior  to  the 
one  you  will  execute  now,  such  donee  will  not  be  in¬ 
jured  by  your  present  conveyance,  as  he  will  have 
priority”  ( Gemara  19b).  B,  therefore,  in  order  to  be 
entitled  to  the  deed  found,  must  come  forward  with 
evidence  to  prove  when  the  delivery  of  such  deed  was 
made  to  him  by  the  donor. 

A  will,  however,  may  be  revoked  by  the  legator,  and 
when  two  wills,  bearing  different  dates  and  devising 
the  same  piece  of  property,  are  produced  for  probate, 
it  is  the  one  which  was  executed  and  delivered  last  that 
is  valid.  If,  therefore,  a  will  is  found,  and  A,  the  lega¬ 
tor,  consents  that  it  be  surrendered  to  B,  the  legatee 
therein  named,  his  instructions  are  complied  with. 
If  A  did  not  deliver  the  will  in  question  to  B,  imme¬ 
diately  upon  the  execution  thereof,  and  thereafter, 
and  prior  to  the  present  delivery  of  the  will  to  B,  exe¬ 
cuted  and  delivered  another  will  to  C,  such  sub¬ 
sequent  legatee  will  in  no  way  be  prejudiced  or  in¬ 
jured  by  this  present  delivery  to  B,  because  the  law  be¬ 
ing,  as  stated  herein,  that  a  legator  may  revoke  his 
will,  and  that  the  last  will  only  is  valid  ( Gemara  l.c.). 

A  deed  of  gift  may  likewise  be  so  made  as  shall  par¬ 
take  the  nature  of  a  will,  in  that  the  donor  reserves 
to  himself  the  right  to  revoke  the  same;  e.  g.,  when  the 
donor  inserted  a  provision  in  the  deed,  whereby  the 
property  was  conveyed,  that  such  gift  should  go  into 
effect  and  become  valid  only  upon  the  death  of  such 


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23 

isfy  the  judgment  obtained  by  the  plaintiff), 

donor,  thus  reserving  the  right  to  revoke  the  same 
during  his  lifetime.  A  deed  made  as  aforesaid  may 
likewise  be  surrendered  to  the  donee  therein  named,  if 
the  donor  consents  to  such  a  surrender  ( Gemara  19a). 

When  a  will  is  found  subsequent  to  the  death  of  the 
legator,  and  the  heirs  of  such  legator  consent  that  the 
will  be  surrendered  to  the  legatee  therein  named,  their 
instructions  are  not  complied  with.  In  the  last  named 
case,  it  is  probable  that  the  legator  intended  to  be¬ 
queath  the  property  to  the  legatee  named  in  the  will, 
but  thereafter  reconsidered  the  matter  and  did  not  de¬ 
liver  such  will  to  the  legatee.  Subsequent  to  the  death 
of  the  legator,  his  heirs  conveyed  the  property  men¬ 
tioned  in  the  will,  in  the  nature  of  a  gift  or  a  sale,  to  a 
different  person.  Such  heirs  now  wish  to  revoke  the 
gift  or  rescind  the  sale  made  by  them,  and,  not  being 
able  to  do  so,  say  to  themselves:  “We  are  unable 
to  revoke  or  defeat  our  conveyance;  we  will,  there¬ 
fore,  claim  that  the  property  conveyed  by  us  had 
been  devised  by  our  father  during  his  lifetime,  and 
consequently  our  conveyance  made  subsequent  to  such 
devise  is  of  no  effect  whatever.  And  when  the  lega¬ 
tee  will  recover  the  property  from  our  donee  or  gran¬ 
tee,  we  will  divide  the  same  among  ourselves.”  The 
court  then  says  to  the  heirs :  “If  you  desire  that  title 
to  the  property  mentioned  in  the  will  shall  vest  in  the 
legatee  therein  named,  why  not  convey  it  to  him  now? 
And  if  subsequent  to  your  father’s  death,  you  con¬ 
veyed  the  same  property  to  some  one  else,  such  donee 
or  grantee  will  sustain  no  loss  by  the  conveyance 
made  by  you  now,  as  his  document  will  bear  a  prior 


24 


Mishnah :  Baba  Meziah 


a  grant  of  alimony  (15),  a  deed  attesting  Hali- 
zah  (16),  a  (minor’s)  letter  of  protest  (17),  a 

date  and  consequently  he  will  have  priority”  (l.  c. 
19b). 

The  reason  collusion  is  feared  in  cases  where  the 
documents  were  lost  and  not  in  any  ordinary  case  is, 
as  stated  in  note  n  supra ,  that  the  fact  that  the  docu¬ 
ment  was  lost  raises  a  presumption  that  it  is  of  no 
validity. 

As  to  the  laws  regarding  the  surrender  of  a  bill  of 
divorce,  vide  Gittin ,  Chapter  hi,  Mishnah  3. 

(15) .  A  grant  of  alimony  is  a  document  executed  by 
a  person  who,  upon  marrying  a  widow  or  a  divorced 
woman  who  has  had  a  daughter  of  her  prior  marriage, 
obligates  himself  to  support  such  daughter  (Rashi  to 
Gemara  20a;  Bertinoro).  Or,  according  to  the  ex¬ 
planation  of  Maimonides  in  his  Commentary  on  the 
Mishnah ,  a  grant  of  alimony  is  the  power  given  by 
the  court  to  a  married  woman  to  sell  her  husband’s 
property  for  the  purpose  of  supporting  herself  and  her 
children,  when  she  was  abandoned  by  him.  ( Vide 
Ketuboth ,  Chapter  XIII,  Mishnah  1.) 

(16) .  “Halizah”  is  when  a  person  dies  leaving  a 
widow  but  no  children,  his  older  brother  must  marry 
the  widow.  When  he  refuses  to  do  so,  the  court,  after 
performing  some  ceremonial  process,  commits  such 
refusal  to  writing.  ( Vide  Deut.  xxv,  5-10.) 

(17) .  A  minor  female  (from  the  age  of  three  to  the 
age  of  twelve  and  one  day)  might  be  given  in  marriage 
by  her  mother  or  brother,  in  case  of  her  father’s  death. 
Such  marriage,  however,  did  not  require  a  divorce  to 
dissolve  the  same,  for  it  was  invalid  if  not  ratified  by 


Court  Documents 


25 


document  referring  to  the  selection  of  arbiters 
(18),  or  any  other  document  properly  exe¬ 
cuted  by  the  court,  he  shall  surrender  it  (to 
the  party  for  whose  benefit  it  was  executed). 
If  one  finds  a  document  of  indebtedness  in  a 
small  leather  bag  or  writing  case,  or  a  roll  or 
batch  of  documents,  he  shall  return  it  (19). 

her  after  she  attained  the  age  of  maturity  (generally 
thirteen  years).  During  her  minority,  she  might  at 
any  time  declare  her  aversion  to  her  husband  and  leave 
him  without  a  divorce.  This  declaration  was  gener¬ 
ally  made  in  the  presence  of  three  witnesses,  embodied 
in  a  document  and  attested  to  by  the  witnesses. 
( Vide  Yebamoth,  107a  et  seq.) 

(18) .  The  issue  of  fact  or  of  law  was,  in  the  Jewish 
procedure,  joined  in  the  following  manner:  Each  of 
the  parties  to  an  action  selected  for  himself  one  of  the 
members  of  the  tribunal,  which  generally  consisted  of 
not  less  than  three,  to  prosecute  or  defend  his  case. 
The  party  stated  the  facts  constituting  his  case  or  de¬ 
fense  before  the  judge  selected  by  him,  and  these  facts 
were  written  down  by  the  judge  in  a  document,  and 
attested  to  by  the  court.  The  party  was  then  com¬ 
pelled  to  abide  by  such  facts  and  could  not  at  the  trial 
bring  in  any  evidence  or  prove  any  matter  which  was 
irrelevant  to  his  cause.  ( Sanhedrin ,  Chapter  111, 
Mishnah  1;  Maimonides  and  Bertinoro  to  Baba 
Bathra ,  Chapter  x,  Mishnah  4.) 

(19) .  The  finder  shall  return  the  documents, 
found  in  a  small  leather  bag  or  writing  case,  to  the 


26 


Mishnah :  Baba  Meziah 


How  many  documents  constitute  a  batch? 
Three  bound  together.  Rabban  Simeon  ben 
Gamaliel  says:  “  (When  the  documents  found 
in  a  roll  or  a  batch  set  forth  that)  one  person 
has  borrowed  money  from  three  different 
creditors,  the  finder  shall  surrender  them  to 
the  debtor;  (and  if  they  set  forth  that)  three 
different  persons  have  borrowed  money  from 
one  creditor,  the  finder  shall  surrender  them 
to  the  creditor”  (20).  If  a  person  finds  a 
document  (which  was  deposited  with  him) 

one  who  is  able  to  describe  the  marks  of  identification 
which  such  bag  or  case  bears.  (Compare  note  1 1 , 
supra.)  So  in  the  case  when  the  documents  are  found 
in  a  batch  or  a  roll,  they  can  be  identified  by  the  per¬ 
son  who  has  lost  them  by  either  giving  the  exact 
number  of  the  documents  ( Gemara  23b),  or  by  de¬ 
scribing  the  manner  in  which  they  were  rolled  or 
tied  together  (/.  c.). 

(20).  When,  however,  the  several  documents  thus 
found  are  written  in  the  same  handwriting,  the  finder 
shall  not  surrender  them  to  either  party  therein  named 
even  in  the  case  mentioned  in  the  text,  because  it  is 
likely  that  the  scrivener  who  wrote  such  documents 
has  lost  them.  But  when  they  are  in  different  hand¬ 
writings,  he  shall  surrender  them  as  stated  by  Rabban 
Simeon,  because  the  fact  that  they  were  found  to¬ 
gether  clearly  indicates  that  they  were  lost  by  one  and 
the  same  person  ( Gemara  20b). 


Court  Documents 


27 


among  his  papers,  and  he  does  not  know  its 
nature  ( i .  e.,  whether  the  document  is  paid  and 
the  debtor  has  deposited  it  with  him,  or  it  is 
unpaid  and  the  creditor  has  deposited  it  with 
him),  it  shall  remain  with  him  until  Elijah 
will  come  (21).  If  there  is  a  postscript  at¬ 
tached  to  the  documents,  you  must  be  guided 
by  the  postscript  (22). 

(21) .  According  to  the  legendary  belief  of  the 
Jews,  the  Prophet  Elijah  will  appear  to  announce 
the  arrival  of  Messiah,  and  he  will  then  clear  up  all 
questions  of  law  and  fact.  Hence,  whenever  the  Tal¬ 
mud  is  uncertain  as  to  how  to  decide  a  certain  question 
of  law  or  of  fact,  it  says  that  it  will  remain  so  un¬ 
decided  until  Elijah  will  come,  meaning  thereby  that 
it  will  remain  doubtful  until  some  one  will  appear 
who  will  be  in  a  position  to  clear  up  such  questions. 

(22) .  If  there  is  a  postscript  attached  which  regu¬ 
lates  or  modifies  the  collection  of  such  document  of 
indebtedness,  the  bailee  must  comply  with  the  terms 
and  conditions  of  such  an  agreement. 


CHAPTER  II 

ARTICLES  LOST  AND  FOUND  {Continued)— 
HELPING  IN  UNLOADING  AND  RE¬ 
LOADING  ANIMAL 

INTRODUCTION 

T'HE  principle  of  law,  that  a  person  upon 
*  finding  a  lost  article  may  convert  the 
same  to  his  own  use,  is  based  solely  upon  the 
theory  known  in  Jewish  jurisprudence  as 
abandonment;  i.  e .,  the  loser  despaired  of  ever 
regaining  the  article  he  had  lost,  and  conse¬ 
quently  he  renounced  his  right  of  ownership. 
In  the  eyes  of  the  law,  it  is  therefore  considered 
an  article  which  has  no  owner,  a  thing  in  a 
state  of  nature,  and  the  one  who  obtains  pos¬ 
session  thereof  in  priority  to  others  acquires 
title  thereto  by  means  of  such  occupancy. 
Abandonment  by  an  owner  of  a  lost 

article  may  be  either  express  or  implied . 

28 


Introduction 


29 


It  is  express  when  the  owner  was  distinctly 
heard  to  despair  of  ever  regaining  it.  It  is 
implied  when  from  the  circumstances  of  the 
case  or  from  the  condition  of  the  lost  article 
it  can  be  inferred  that  the  last  proprietor 
thereof  has  despaired  of  it;  e.  g.,  either  when 
the  article  thus  found  has  no  particular  marks 
by  means  of  which  the  owner  thereof  is 
able  to  identify  it  and  thus  regain  possession; 
i.  e. ,  the  article  is  one  of  a  certain  kind  making 
it  impossible  for  one  to  be  distinguished  from 
the  other;  or  when  the  place  wherein  the 
article  was  found  cannot  be  pointed  out  with 
certainty  by  the  owner;  when  it  is  a  public 
thoroughfare,  where  probably  the  article  has 
been  lying  for  some  length  of  time  and  has 
been  moved  about  from  place  to  place  by 
passers-by.  Consequently  the  owner  cannot 
point  out  to  the  finder  the  exact  spot  where  the 
article  was  found  bv  him. 

•s 

When  either  of  the  above  named  conditions 
exists,  it  is  implied  that  the  owner  despaired 
of  ever  regaining  his  property,  being  aware  of 
the  fact  that  he  will  be  unable  to  prove 
satisfactorily  to  the  finder  that  the  article 


30  Mishnah  :  Baba  Meziah 

belongs  to  him.  Furthermore  he  will  be 
unable  to  prove  ownership  either  by  describ¬ 
ing  any  particular  marks  such  article  bears, 
or  by  pointing  out  the  exact  spot  wherein  it 
was  found.  If  the  above  named  requisites 
do  not  exist,  the  finder  is  then  bound  to  pro¬ 
claim  the  fact  that  he  has  found  a  lost  article 
in  the  manner  provided  for  by  law.  He 
must  surrender  the  article  to  the  one  who 
either  describes  all  the  marks  of  identification 
such  an  article  bears,  or  points  out  the  spot 
wherein  it  was  found,  and  thus  satisfactorily 
proves  ownership. 

Mishnah  I.  Some  articles  belong  to  the 
finder,  and  some  must  be  proclaimed.  The 
following  belong  to  the  finder:  Scattered  fruit, 
scattered  coins,  small  sheaves  when  found  in 
a  public  thoroughfare,  round  cakes  of  pressed 
figs,  a  baker’s  loaves  of  bread,  strings  of  fish, 
pieces  of  meat,  stripes  of  wool  in  their  natural 
state,  cleansed  flax-stalks,  and  purple  wool 
coming  in  straps  (i).  This  is  the  opinion  of 

(i).  The  articles  enumerated  in  this  Mishnah 
must  not  be  proclaimed  because  they  generally  do  not 


Articles  Lost  and  Found 


3i 


Rabbi  Meir.  Rabbi  Judah  says:  “Every¬ 
thing  which  contains  something  unusual  in  it 
must  be  proclaimed;  e.  g.,  one  finds  a  fig-cake 
in  which  there  is  a  fragment  of  a  clay  vessel, 
or  a  loaf  of  bread  in  which  there  are  coins — 
such  articles  must  be  proclaimed  ”  (2).  Rabbi 

bear  any  particular  marks  by  means  of  which  the 
owner  is  enabled  to  identify  them  and  prove  his 
ownership;  i.  e .,  all  articles  having  the  same  resem¬ 
blance  cannot  be  distinguished  from  the  class  to  which 
they  belong.  The  owner,  therefore,  upon  losing 
such  articles  has  despaired  of  ever  regaining  them, 
and  consequently  they  belong  to  the  first  fortunate 
finder. 

(2).  The  opinion  of  Rabbi  Judah  is  that  an  article, 
which  bears  any  mark  by  means  of  which  it  can  be 
identified  by  the  owner,  must  be  proclaimed,  even 
when  it  is  probable  that  the  owner  is  not  aware  of  the 
existence  of  the  secret  mark  of  identification.  The 
fragment  of  clay  in  the  fig-cake  or  the  coins  in 
the  loaf  of  bread,  have  perhaps  fallen  therein  acci¬ 
dentally,  and  the  owner  has  no  knowledge  of  the 
existence  of  such  an  occurrence.  Nevertheless, 
when  there  exists  the  slightest  probability  that 
the  owner  may  be  aware  of  the  fact  that  the  articles 
contain  such  objects,  and  consequently  will  be 
enabled  to  regain  his  property,  the  finder  is 
bound  to  proclaim  them.  This  view  is  sustained 
by  Maimonides,  Laws  of  Robbery  and  Lost  Articles , 
Chapter  xv,  Law  1 1 . 


32 


Mishnah :  Baba  Meziah 


Simeon  ben  Eleazar  says:  “(New)  merchan¬ 
dise  need  not  be  proclaimed”  (3). 

Mishnah  II.  The  following  articles  must 
be  proclaimed  by  the  finder:  Fruit  in  a  vessel, 
or  a  vessel  containing  nothing;  money  in  a 
purse,  or  a  purse  containing  nothing;  heaps 
of  fruit;  heaps  of  coins;  three  coins  one  on 
the  top  of  the  other;  small  sheaves  on  pri¬ 
vate  ground ;  homemade  loaves  of  bread ; 
stripes  of  wool  which  were  already  in  a  me¬ 
chanic’s  workshop ;  and  pitchers  full  of  wine  or 

oil  (4). 

(3) .  The  Gemara  23b  says  that  Rabbi  Simeon’s 
view  refers  to  new  articles  which  bear  no  particular 
marks  of  identification.  The  Gemara  further  main¬ 
tains  that  when  one  finds  an  article  he  must  proclaim 
it  even  when  it  bears  no  particular  marks  of  identifica¬ 
tion,  for  the  reason  that  it  must  be  surrendered  by  the 
finder  to  a  person  who  has  a  good  reputation  for 
veracity,  if  such  person  identifies  the  article  from  a 
general  impression  of  its  form  without  stating  par¬ 
ticular  marks.  When,  however,  the  article  is  new 
and  it  is  evident  that  it  has  not  been  in  the  owner’s 
possession  long  enough  to  enable  him  to  identify 
it  from  a  mere  general  impression  of  its  form,  it  must 
not  be  proclaimed.  This  view  is  sustained  by  Alfasi 
and  Maimonides,  Laws  of  Robbery  and  Lost  Articles , 
Chapter  xiv,  Law  13. 

(4) .  The  articles  enumerated  in  this  Mishnah 


Articles  Lost  and  Found 


33 


Mishnah  III.  If  one  finds  pigeons,  tied 
together  by  their  wings,  behind  a  wooden  or 
stone  fence,  or  if  such  pigeons  were  placed  on 
the  foot-paths  of  a  private  field,  he  must  not 
take  them  into  his  possession  (5).  When  one 
finds  an  article  in  a  dung-heap,  if  it  be  covered, 
he  must  not  take  the  same  (6) ;  if  it  be  uncov¬ 
ered,  he  must  proclaim  it.  When  one  finds 
an  article  in  a  stone-heap  or  in  a  wall  decayed 
by  age,  it  belongs  to  him  (7) ;  when  one  finds 

must  be  proclaimed  because  they  generally  bear  par¬ 
ticular  marks  whereby  they  can  be  identified  by  their 
owners. 

(5) .  Pigeons  thus  found  must  not  be  taken  by  the 
finder  into  his  care  for  the  purpose  of  returning  them 
to  their  owner,  because  it  is  probable  that  the  owner 
has  placed  them  there  temporarily,  and,  as  pigeons 
have  no  particular  marks  of  identification,  the  owner 
will  be  unable  to  regain  them  ( Gemara  25b). 

(6) .  When  the  article  is  well  covered  by  the  dung- 
heap,  it  is  not  considered  a  lost  article  which  the  finder 
is  bound  to  take  into  his  care  and  proclaim  in  the 
manner  provided  for  by  law  (Rashi  to  Gemara  25b). 

(7) .  Things  found  in  an  old  wall  may  be  kept  by 
the  finder,  for  they  probably  belonged,  if  found  in  the 
Holy  Land,  to  the  ancient  Canaanites,  or  to  some  other 
forgotten  nation.  This  rule  of  law,  therefore,  holds 
true  only  where  in  addition  to  the  aged  condition  of 
the  wall,  the  condition  of  the  article  is  such  as  to 


3 


34 


Mishnah :  Baba  Meziah 


something  in  a  wall  which  is  not  decayed  by 
age,  if  it  lies  in  the  outer  part  of  the  wall,  it 
belongs  to  him,  and  if  it  lies  in  the  inner  part  of 
the  wall,  it  belongs  to  the  owner  of  the  wall. 
If  one  finds  aught  in  premises  which  were 
rented  by  the  owner  to  various  tenants,  it 
belongs  to  him,  even  when  he  finds  the  same 
in  the  middle  of  the  house  (8). 

indicate  that  it  had  been  there  for  a  number  of  years 
{Gemara  26a),  and  consequently  cannot  and  does  not 
belong  to  the  present  owner  of  such  wall.  Otherwise 
the  articles  found  therein  belong  to  the  owner. 

(8).  The  articles  found  in  premises  which  have 
been  occupied  by  several  successive  tenants  do  not 
belong  to  the  finder  when  the  last  occupant  of  the 
premises  is  an  Israelite,  because  the  presumption  is 
that  the  articles  thus  found  belong  to  the  last  occupant 
of  the  premises.  The  ruling  of  this  Mishnah,  there¬ 
fore,  must  be  interpreted  that  the  last  occupant  of 
the  premises  was  a  non- Israelite,  who  is  not  entitled 
by  law  to  have  a  lost  article  restored  to  him  ( Gemara 
26a). 

The  last  named  rule  of  law  is  based  upon  the  fol¬ 
lowing  reasoning.  Civil  law,  the  product  of  justice 
and  of  natural  principles  of  humanity,  nevertheless 
owes  its  origin  to  principles  of  social  life.  Many  laws 
are  made  for  mutual  and  reciprocal  advantages  of 
society.  Laws,  therefore,  cannot  be  made  for  a 
single  individual  only.  An  individual,  associating  with 


Articles  Lost  and  Found 


35 


Mishnah  IV.  If  one  finds  something  in  a 
store,  it  belongs  to  him  (9);  if,  however,  he 
finds  it  between  the  counter  and  the  store¬ 
keeper’s  seat,  it  belongs  to  the  storekeeper. 

people  not  bound  to  observe  any  set  principles  of 
law,  cannot,  with  justice,  be  compelled  to  observe  laws 
of  justice  in  his  dealings  with  them,  as  his  equitable 
and  just  dealings  will  not  be  reciprocated. 

As  is  the  case  with  an  individual,  so  it  is  with  an 
entire  nation.  One  nation  cannot  be  singled  out  from 
the  entire  world  and  be  forced  to  observe  such  equi¬ 
table  principles  of  civil  law  as  the  Jews  have,  in  dealing 
with  other  nations,  and  at  the  same  time  the  other 
nations  refusing  to  reciprocate. 

The  barbarian  non-Israelite,  therefore,  who  could 
not  be  prevailed  upon  to  observe  law  and  order,  was 
not  to  be  benefited  by  the  Jewish  civil  laws,  framed  to 
regulate  a  stable  and  orderly  society,  as  he  is  not  a 
“ neighbor”  or  “brother”  in  the  sense  of  reciprocity. 

The  Mosaic  Law  provides  for  the  restoration  of  a 
lost  article  to  its  owner  if  a  “brother”  (Deut.  xxii,  1), 
but  not  if  a  non-Israelite  ( Baba  Kama  113b),  because 
the  latter  would  not  reciprocate.  It  was,  therefore, 
held  that  if  one  finds  aught  in  a  city,  the  majority 
of  whose  inhabitants  are  non- Israelites,  he  is  not  bound 
to  restore  it  to  its  owner  ( Gemara  24a) ,  even  when  he 
is  certain  that  an  Israelite  has  lost  it,  because  the 
owner,  presuming  that  a  non- Israelite  has  found  it, 
despaired  of  ever  regaining  it  ( Tosafot  to  l.  c.).  The 
Persian  law  commanded  the  surrender  of  all  lost 
articles  to  the  king  ( Gemara  28b). 


36 


Mishnah :  Baba  Meziah 


If  one  finds  something  in  front  of  a  money¬ 
changer’s  table,  it  belongs  to  him  (9) ;  if,  how¬ 
ever,  he  finds  it  between  the  stool  (whereon 
the  money-changer  displays  his  money)  and 
the  money-changer,  it  belongs  to  the  latter 
(10).  If  one  buys  fruit  from  his  neighbor, 

Furthermore,  a  lost  article  was  not  to  be  restored 
to  a  non-Israelite,  not  only  because  the  latter  would 
not  reciprocate,  but  also  for  the  further  reason  that 
such  restoration  would  be  a  hazardous  undertaking. 
The  law  of  Hammurabi,  for  instance,  made  certain 
acts  connected  with  “articles  lost  and  found”  a 
ground  for  capital  punishment,  thus:  “If  the  owner 
of  lost  property  has  not  brought  witnesses  identify¬ 
ing  his  lost  property;  if  he  has  lied,  or  stirred  up  strife, 
he  shall  be  put  to  death”  (Johns,  Oldest  Code  of  Laws, 
Sect.  11).  The  loser,  the  finder,  and  an  intermediate 
person  was  put  to  death  in  certain  stages  of  the  search 
for  the  missing  article  (/.  c .,  Sects.  9-13). 

(9) .  Articles  found  in  a  store  or  in  front  of  a 
money-changer’s  stand  belong  to  the  finder,  because 
they  were  presumably  lost  by  a  customer,  and,  as 
these  places  partake  the  nature  of  a  public  place,  the 
doctrine  of  abandonment  is  applicable  to  such  lost 
articles.  If,  however,  the  articles  found  in  such 
places  bear  particular  marks  of  identification,  they 
must  be  proclaimed  (Rashi  to  Gemara  26b). 

(10) .  The  finder  must  surrender  the  articles, 
found  in  the  places  mentioned  in  the  text,  to  the 
proprietor  even  when  they  bear  no  particular  marks 


Articles  Lost  and  Found 


37 


or  if  the  fruit  has  been  sent  to  him,  and  he 
finds  coins  therein,  they  belong  to  him  (u). 
If,  however,  the  coins  thus  found  were  tied 
up  in  a  package,  he  must  proclaim  them  (12). 

of  identification.  Such  places,  being  exclusively 
occupied  by  the  proprietor,  the  articles  found  therein 
were  presumably  lost  by  him. 

(11) .  The  present  owner  of  the  fruit  is  permitted 
to  convert  the  coins  thus  found  to  his  own  use  only 
when  he  has  bought  it  from  a  merchant  who  generally 
buys  fruit  from  various  persons.  In  such  a  case  it 
cannot  be  ascertained  to  whom  the  coins  have  be¬ 
longed,  and  their  owner  despaired  of  ever  regaining 
them  because  they  cannot  be  identified.  When, 
however,  one  buys  fruit  from  a  peasant,  who  has  not 
employed  workmen  in  threshing  his  grain,  the  coins 
must  then  be  surrendered  to  the  peasant  ( Gemara  27a). 

(12) .  Money  found  in  a  package  or  in  a  purse 
must  be  proclaimed  because  it  can  be  identified  by 
the  owner  either  by  giving  a  full  and  detailed  de¬ 
scription  of  the  package  or  the  purse,  or  by  giving  the 
exact  amount  of  money  that  was  found  therein.  The 
reason  scattered  coins  are  not  to  be  proclaimed  (Mish- 
nah  I,  supra)  is  that  it  is  uncertain  whether  all  the 
coins  were  lost  by  the  owner  at  one  and  the  same  time 
and  in  one  and  the  same  place.  The  owner,  not 
knowing  whether  or  not  the  entire  sum  of  money  he 
lost  was  found  by  one  man  in  one  place,  consequently 
despaired  of  it,  as  he  will  be  unable  to  identify  it 
either  by  giving  the  exact  amount  of  the  money  found 
or  by  pointing  out  the  exact  spot  wherein  the  money 


38 


Mishnah :  Baba  Meziah 


Mishnah  V.  A  garment  was  also  included 
(in  the  verse:  “And  in  like  manner  shalt  thou 
do  with  every  lost  article  of  thy  brother, 
which  may  have  been  lost  to  him,  and  which 
thou  hast  found;  thou  shalt  not  withdraw 
thyself  therefrom,”  Deut.  xxii,  3),  why  then 
was  it  mentioned  separately  in  said  verse 
(“and  in  like  manner  shalt  thou  do  with  his 
garment”)?  In  order  to  compare  every  lost 
article  (with  regard  to  its  restoration)  to 
a  garment,  and  to  point  out  that  just  as 
a  garment  must  be  proclaimed  by  the  finder 
because  it  bears  marks  of  identification 
and  there  is  one  to  claim  ownership  (13),  so 

was  found.  When,  however,  the  coins  are  found  in 
a  heap  (Mishnah  II,  supra )  or  in  a  package,  they 
must  be  proclaimed  and  surrendered  to  the  person 
who  is  able  either  to  give  the  exact  amount  of  the 
money  found,  or  to  point  out  the  exact  spot  where 
it  was  found,  even  when  the  package  bears  no  par¬ 
ticular  marks  of  identification.  The  giving  of  the 
exact  amount  of  money  ( Gemara  23b),  and  the 
pointing  out  of  the  exact  spot  {Gemara  22b),  are  valid 
identifications. 

(13).  The  mere  fact  that  an  article  bears  marks  of 
identification  is  in  itself  not  sufficient  to  warrant  a 
proclamation.  The  finder  is  not  bound  to  proclaim 
an  article  even  when  it  does  bear  marks  of  identifica- 


Articles  Lost  and  Found 


39 


must  every  article  be  proclaimed,  if  it  has 
marks  of  identification  and  there  is  one  to 
claim  ownership. 

Mishnah  VI.  For  how  long  a  period  is 
the  finder  bound  to  proclaim  a  lost  article? 
Until  the  neighbors  become  aware  of  the  fact 

(14) ;  this  is  the  opinion  of  Rabbi  Meir. 
Rabbi  Judah  says:  “At  all  the  three  festivals 

(15) ,  and  for  seven  days  after  the  last  festival, 

tion,  if  the  owner  was  expressly  heard  to  state  that  he 
had  despaired  of  ever  regaining  it.  This  explanation 
of  the  text  of  the  Mishnah  is  upheld  by  Rashi  (to  Ge- 
mara  27a)  and  Maimonides,  Commentary  on  the 
Mishnah . 

(14) .  The  neighbors  of  the  place  where  such 
articles  were  found;  it  is  most  probable  that  they 
were  lost  by  one  of  them  ( Gemara  28a). 

(15) .  Namely,  Passover,  the  Feast  of  Weeks  and 
the  Feast  of  Tabernacles,  when  all  Jews  were  to 
appear  in  the  Holy  Temple,  and  for  many  years  after 
the  destruction  of  the  Temple,  the  Jews  were  accus¬ 
tomed  to  visit  on  the  above  named  festivals  the  place 
where  the  Temple  had  stood.  After  the  expiration 
of  the  third  holiday  following  the  proclamation  of  a 
lost  article,  the  finder  must  remain  in  Jerusalem  for 
seven  days  in  order  that  every  one  may  have  a  chance 
to  go  home,  look  over  his  belongings  and  ascertain 
whether  he  has  lost  anything  and  return  to  Jerusalem. 
An  additional  day  is  given  him  for  communicating 


40 


Mishnah :  Baba  Meziah 


in  order  to  allow  the  loser  three  days  in  which 
to  reach  home,  three  days  for  the  return,  and 
one  day  for  the  proclamation.” 

Mishnah  VII.  One  (claiming  to  be  owner 
of  a  lost  article)  states  the  object  he  has  lost, 
but  is  unable  to  describe  its  marks  of  identifi¬ 
cation,  it  shall  not  be  delivered  to  him.  If  the 
claimant  is  reputed  to  be  a  deceiver,  the  lost 
article  shall  not  be  delivered  to  him  even  when 
he  does  describe  its  marks  of  identification,  as  it 
is  said  (Deut.  xxii,  2) :  “  And  it  (the  lost  article) 
shall  remain  with  thee  until  thy  brother  inquires 
after  it,”  which  means,  until  you  investigate 
your  brother  whether  he  is  a  deceiver  or  not 
(i.  e.f  whether  he  is  your  brother  or  a  deceiver). 

If  a  man  finds  an  animal  that  earns  its  keep 
by  its  work,  he  is  compelled  to  use  it  for  work 
and  feed  it  (16) ;  but  if  he  finds  an  animal  that 

with  the  finder.  Rabbi  Judah’s  view  is  sustained  by 
Alfasi  and  Maimonides,  Laws  of  Lost  Articles,  Chapter 
xiii,  Law  8„ 

(16).  The  finder  is  not  bound  by  law  to  do  so  ad 
infinitum,  but  for  a  certain  limited  time  only;  all 
depending  upon  the  nature  of  the  animal.  The 
highest  period  prescribed  by  law  in  such  cases  is  not 
longer  than  one  year  ( Gemara  28b). 


Articles  Lost  and  Found 


4i 


does  not  earn  its  keep  by  its  labor,  he  must 
sell  it  (and  keep  the  proceeds  for  the  owner) ; 
as  it  is  said  (/.  c.):  “And  thou  shalt  restore 
it  to  him  (the  owner),”  which  means,  deliber¬ 
ate  how  the  restoration  shall  be  made  (17). 
What  shall  be  done  with  the  money  (realized 
from  such  sale)?  Rabbi  Tarfon  says:  “He 
may  use  it,  and  therefore  he  is  responsible  if 
it  gets  lost  ”  (18).  Rabbi  Akiba  says :  ‘  ‘  He  may 

(17) .  When  one  finds  an  animal  that  does  not 
earn  its  keep  by  its  work,  he  is  not  permitted  to  take 
care  of  it  and  feed  it  until  the  owner  demands  the 
same.  He  must  sell  the  animal  and  hold  the  money 
for  the  owner,  as  the  expenditures  for  feed  may  equal 
to  or  even  exceed  the  value  of  the  animal. 

According  to  Rashi’s  explanation  of  the  text  of  the 
Gemara  28b,  such  sale  must  be  effected  under  the 
supervision  of  the  court.  Tosafot,  however,  and 
many  other  later  jurists  hold  that  it  is  not  at  all 
necessary  to  have  the  court’s  supervision.  They, 
furthermore,  hold  that  the  finder  himself  may  deter¬ 
mine  the  value  of  the  animal  and  keep  it,  on  the 
obvious  ground  that  the  court  cannot  suspect  the 
finder  of  undervaluing  the  animal.  Had  he  been 
dishonest,  he  could  have  concealed  the  fact  of  find¬ 
ing  the  animal,  and  thus  be  benefited  by  its  entire 
value. 

(18) .  In  this  case  the  finder  becomes  liable  as  if  he 
were  a  borrower.  ( Vide  Chapter  VII,  Mishnah  VIII.) 


42 


Mishnah :  Baba  Meziah 


not  use  it,  and  therefore  he  is  not  responsible 
in  case  of  loss.” 

Mishnah  VIII.  If  one  finds  books  (and 
holds  them  in  charge  for  the  owner),  he  must 
read  them  once  in  thirty  days.  If  unable  to 
read,  he  must  roll  them  over  (19)  once  in 
thirty  days  (in  order  to  air  them).  He  is  not, 
however,  permitted  to  make  use  of  them  for 
studying  purposes.  Furthermore,  no  one  else 
is  allowed  to  read  with  him  (at  one  and  the 
same  time).  If  one  finds  a  garment,  he 

It  is  not  at  all  vital  that  he  makes  actual  use  of  the 
money  in  order  to  be  held  liable  as  a  borrower.  Since 
he  is  privileged  by  law  to  make  use  of  the  money,  he 
is  considered  a  borrower  from  the  moment  the  sale 
is  effected,  whether  he  actually  avails  himself  of  such 
privilege  or  not  ( Gemara  29a). 

The  opinion  of  Rabbi  Tarfon  is  the  prevailing  law. 
His  view,  however,  holds  true  only  where  the  money 
in  the  custody  of  the  finder  was  realized  from  the  sale 
of  a  lost  article,  and  the  privilege  of  using  it  is  given 
him  by  law  in  consideration  of  the  trouble  he  had  in 
effecting  the  sale.  When  one,  however,  finds  ready 
money,  he  is  not  allowed  to  make  any  use  thereof. 
(View  of  Rab  Huna,  Gemara  29b ;  sustained  by  Alfasi 
and  Maimonides,  Laws  of  Robbery  and  Lost  Articles , 
Chapter  xm,  Law  18.) 

(19).  The  books  in  those  days  were  made  in  the 
form  of  scrolls. 


Articles  Lost  and  Found 


43 


must  shake  it  once  in  thirty  days;  he  may 
spread  it  (on  his  bed  or  table,  or  make  any 
other  use  thereof)  only  when  it  is  for  its 
need,  but  he  may  not  do  so  when  it  is  to 
his  own  honor  or  for  his  own  need.  He 
may  make  only  such  use  of  silver  or  copper 
vessels  as  is  necessary  for  their  need  (that 
they  might  not  become  rusty) .  He  must 
not,  however,  use  them  so  often  or  so  much 
that  they  become  worn  out.  He  is  not  al¬ 
lowed  to  make  any  use  whatever  of  utensils 
of  gold  or  of  glassware  until  Elijah  will  come 
(20).  If  one  finds  a  sack  or  a  big  basket, 
or  any  other  article  which  is  unbecoming 
for  him  to  carry,  he  is  not  bound  by  law  to 
take  it  (into  his  care  for  the  purpose  of 
making  an  effort  to  return  the  same  to  the 
owner)  (21). 

Mishnah  IX.  What  is  to  be  considered  a 

(20) .  The  finder  is  not  permitted  to  make  any 
use  whatever  of  the  vessels  made  out  of  the  material 
mentioned  in  the  text,  because  they  do  not  become 
rusty  or  worn  out  even  when  not  used  at  all. 

(21) .  This  rule  of  law  is  sustained  on  the  theory 
that  one  is  not  bound  by  law  to  do  for  others  that 
which  he  would  not  do  for  himself. 


44 


Mishnah :  Baba  Meziah 


lost  article  (22)  ?  If  one  finds  an  ass  or  a  cow 
grazing  along  the  highway,  it  is  not  to  be 
considered  as  lost;  if  he  finds  an  ass  with  his 
gear  hanging  upside  down,  or  a  cow  running 
among  vineyards,  it  is  to  be  considered  as 
lost.  If  the  finder  has  returned  the  animal 
and  it  runs  away  again,  even  when  this  occurs 
four  or  five  times,  he  is  still  bound  to  return 
it  on  each  occasion;  as  it  is  said  (Deut.  xxii,  1) : 
“Thou  shalt  surely  bring  them  back  again 
unto  thy  brother”  (23). 

(22) .  Under  what  circumstances  is  a  man  bound 
by  law  to  take  an  article  into  his  possession,  and 
consider  it  as  lost  in  order  to  make  an  effort  of  return¬ 
ing  the  same?  When  the  condition  of  the  article  or 
of  the  place  wherein  it  was  found  is  such  as  to  indicate 
that  the  owner  would  never  intentionally  have  placed 
it  there.  This  is  the  criterion  by  which  a  man,  upon 
seeing  a  certain  article  or  animal,  is  to  determine 
whether  or  not  he  is  bound  by  law  to  take  it  into  his 
possession,  take  the  necessary  care  thereof,  and  make 
all  efforts  possible  to  restore  it  to  its  owner. 

(23) .  The  text  in  the  Pentateuch  (/.  c.)  is  hosheb, 
which  is  the  infinitive  absolute  form  of  the  Hebrew 
verb  to  return ,  and  theshibem,  which  is  the  future  form 
of  the  same.  The  Mishnaic  theory  in  every  case  is, 
that  the  infinitive  absolute  of  a  verb  with  the  finite 
form  thereof  is  used  not  only  to  express  emphasis, 


Articles  Lost  and  Found 


45 


If  the  finder  neglected  his  usual  work  (in 
taking  charge  of  the  lost  article)  to  the  extent 
of  a  sela ,  he  cannot  say  to  the  owner:  “Give 
me  a  sela;  ”  but  the  latter  has  to  pay  him  as  he 
would  pay  an  (idle)  laborer  (24).  If  there  is 
a  court  of  justice  (in  the  neighborhood  where 
the  article  is  found)  (25),  the  finder  may  bring 
it  before  such  court  for  adjudication  (26); 

that  it  must  be  done  without  fail,  but  that  the  repeti¬ 
tion  also  indicates  that  the  thing  ordered  to  be  done 
must  be  done  to  its  perfection,  even  when  it  is  to  be 
repeated  several  times.  In  the  case  of  a  lost  article, 
it  cannot  be  called  a  complete  restoration  unless  the 
lost  article  is  securely  restored  to  the  possession  of  the 
owner.  According  to  the  Law  of  the  Scripture, 
therefore,  the  finder  must  return  the  lost  article  as 
many  times  as  may  be  necessary. 

(24) .  We  inquire  how  much  less  a  laborer  would 
take  when  required  to  do  work  of  this  nature  (to  take 
charge  of  a  lost  article)  than  for  his  usual  work 
( Gemara  31b;  Rashi  a.  /.). 

(25) .  In  the  Jewish  procedure,  any  body  of  three 
or  more  laymen  constituted  a  court  of  common  men. 

(26) .  The  finder  says  to  such  court:  “  The  loss 
of  my  time  is  so  much  and  so  much,  and  I  restore  this 
lost  article  on  the  express  condition  that  I  shall 
receive  full  compensation  for  the  loss  of  my  time.” 
If  the  court,  upon  due  deliberation  of  the  facts  of  the 
case,  awards  him  the  sum  demanded,  the  owner  must 
abide  by  such  decision. 


46 


Mishnah :  Baba  Meziah 


if  there  is  no  such  court  before  which  to  bring 
it,  his  own  time  is  then  preferable. 

Mishnah  X.  If  one  finds  an  animal  in  a 
stable,  he  is  not  bound  to  concern  himself 
with  it  (27) ;  if  it  is  in  a  public  thoroughfare, 
he  is  compelled  to  take  it  into  his  care.  If  it  is 
in  a  cemetery  (and  the  finder  is  a  Priest,  who 
is  prohibited  by  law  from  entering  therein) ,  he 
is  not  allowed  to  enter  and  take  it.  If  in  the 
last  named  instance,  the  father  of  the  Priest 
told  him  to  defile  himself,  or  if  in  any  other  in¬ 
stance  a  father  tells  his  son  not  to  return  a  lost 
article,  the  former  must  not  be  obeyed. 

If  a  person  unloaded  or  reloaded  an  animal, 
and  he  did  so  over  and  over  again,  even  four 
or  five  times,  he  is  still  bound  to  do  so  again 
(28);  as  it  is  said  (Ex.  xxiii,  5):  “Thou  shalt 

(27) .  Although  the  stable  is  unlocked  and  the 
animal  is  not  well  guarded  therein,  the  finder  is  not 
bound  to  take  it  into  his  care,  because  the  mere  fact 
that  it  is  in  a  stable  indicates  that  it  is  not  lost 
( Gemara  32a). 

(28)  .  This  rule  of  law  interprets  the  commandment 
of  the  Torah  (Ex.  xxiii,  5) :  “If  thou  see  the  ass  of  him 
that  hateth  thee  lying  under  its  burden  and  wouldst 
forbear  to  help  him,  thou  shalt  surely  help  him.” 


Unloading  and  Reloading  47 

surely  help  him”  (29).  If  the  owner  of  the 
animal  went  and  sat  down,  and  said  to  the 
passer-by:  “Since  you  are  bound  by  the  Law 
of  Moses  to  assist  me,  do  so  (without  my 
help),”  the  latter  is  not  compelled  to  do  any¬ 
thing  at  all;  as  it  is  said  (/.  c.):  “With  him 
(the  owner).”  If,  however,  the  owner  of  the 
animal  is  an  old  man  or  sickly,  the  passer-by  is 
obliged  to  render  the  necessary  assistance  (even 
without  the  help  of  the  owner).  The  biblical 
law  requires  a  man  to  help  in  unloading  an  ani¬ 
mal,  but  not  in  reloading  it  (30).  Rabbi  Sim- 

(29) .  The  text  in  the  Pentateuch  reads  asob,  to 
help;  ta’sob,  thou  shall  help.  For  the  use  of  an  infini¬ 
tive  with  a  finite  form  of  a  verb,  vide  note  23,  supra. 

(30) .  One  is  compelled  by  the  law  of  the  Penta¬ 
teuch  to  help  unload  the  animal  gratuitously,  and 
help  reload  it  for  remuneration  only  ( Gemara  32a). 
The  anonymous  tanna  is  of  the  opinion  that  the  Torah, 
in  commanding  one  to  help  his  neighbor  relieve  his 
animal  of  a  burden,  has  reference  to  a  case  where  the 
animal  suffers,  but  that  such  commandment  does  not 
impose  upon  one  to  render  relief  to  the  owner  of  the 
animal.  In  other  words,  the  Pentateuch  in  this 
particular  case  provides  for  the  benefit  of  the  animal 
and  not  for  the  benefit  of  the  owner.  In  a  case  of 
reloading,  therefore,  where  the  animal  does  not  suffer, 
the  passer-by  is  not  compelled  by  the  aforesaid  com- 


48 


Mishnah :  Baba  Meziah 


eon  says :  ‘  ‘  Reloading,  too  ”  (31).  Rabbi  J ose 
the  Galilean  says :  ‘ 4  If  the  animal  was  overburd¬ 
ened  by  its  owner,  one  is  not  bound  to  render 
any  assistance,  as  it  is  said  (l.  c .):  ‘Under  its 
burden  *  which  implies,  that  it  must  be  such  a 
burden  which  the  animal  is  able  to  carry  ”  (32). 

mandment  to  help  reload  it  gratuitously  in  order  to 
relieve  the  owner  from  his  suffering;  but  in  the  case 
of  unloading  where  the  animal  does  suffer,  the  passer¬ 
by  is  bound  to  help  unloading  without  remuneration, 
in  order  to  relieve  the  animal. 

(31) .  Rabbi  Simeon  is  of  the  opinion  that  even 
reloading  must  be  done  gratuitously,  because  the  law 
of  the  Pentateuch  applies  to  the  relieving  of  the 
owner  as  well  as  to  that  of  the  animal.  His  view  does 
not  prevail  (Maimonides,  Commentary  on  the  Mishnah) . 

(32) .  The  opinion  of  this  tanna,  as  deduced  by 
him  from  the  Pentateuch,  is  that  a  man  is  bound  by 
law  to  help  his  neighbor  in  unloading  his  animal  only 
when,  through  no  fault  of  the  owner,  it  accidentally 
happens  for  some  reason  or  other  that  the  animal 
becomes  disabled  from  continuing  to  carry  its  burden. 
When,  however,  the  disability  is  entirely  caused  by  the 
recklessness  or  carelessness  of  the  owner,  in  that  he 
put  too  heavy  a  burden  upon  the  animal,  one  is  not 
compelled  by  law  to  help  him  even  unload  it  gratui¬ 
tously.  This  view  is  not  supported  by  weight  of 
authority:  the  prevailing  opinion  is  that  unloading 
must  be  helped  gratuitously  under  all  circumstances 
(Alfasi ;  Maimonides,  Commentary  on  the  Mishnah ) . 


Unloading  and  Reloading  49 

Mishnah  XI.  If  a  man’s  own  lost  article 
and  his  father’s  are  to  be  attended  to,  his  own 
has  the  precedence;  his  own  lost  article  and 
his  teacher’s,  his  own  has  the  precedence  (33) ; 
his  father’s  lost  article  and  his  teacher’s,  his 
teacher’s  has  the  precedence,  because  his 
father  brought  him  into  this  world,  but  his 
teacher  who  has  taught  him  knowledge  has 
brought  him  thereby  into  the  world  to  come 
(34);  if,  however,  his  father  is  an  educated 
man,  he  has  the  precedence.  If  his  father  and 
his  teacher  were  each  carrying  his  burden, 
he  shall  assist  his  teacher  first  (in  helping  him 
take  off  his  burden),  and  thereafter  assist 
his  father.  If  his  father  and  his  teacher  were 
taken  into  captivity,  he  shall  ransom  his 
teacher  first  and  then  his  father;  if,  however, 
his  father  is  an  educated  man,  he  shall  ransom 
his  father  first  and  then  his  teacher. 

(33 )  •  When  there  is  not  sufficient  time  for  him  to  save 
both  of  the  lost  articles,  then  his  own  has  preference. 

(34)  .  This  rule  of  law,  however,  holds  true  only 
when  the  disciple  has  gained  most  of  his  knowledge, 
in  the  subject  he  is  versed  in,  from  such  teacher,  but 
not  otherwise  ( Gemara  33a;  Maimonides,  Laws  of 
Lost  Articles ,  Chapter  xn,  Law  2). 


CHAPTER  III 


BAILMENTS 

Mishnah  I.  One  bails  an  animal  or 
vessels  with  his  neighbor  (who  is  to  guard  the 
same  gratuitously),  and  such  bailment  is 
stolen  or  lost  (while  in  the  possession  of  the 
bailee).  If  the  bailee  pays  for  the  bailment 
(i)  and  does  not  want  to  take  the  prescribed 

(i).  It  is  not  essential  that  the  bailee  shall  make 
actual  payment  to  the  bailor  in  order  that  he  may  be 
subrogated  to  the  rights  of  the  bailor  and  become 
entitled  to  the  penalty  paid  by  the  thief.  If  he  promi¬ 
ses  to  pay  for  the  bailment  it  is  sufficient  ( Gemara  34a; 
Alfasi;  Maimonides,  Laws  of  Loan  and  Bailment , 
Chapter  vm,  Law  1).  The  bailee  upon  making  such 
promise  to  the  bailor  is  unable  to  retract,  because  his 
promise  is  supported  by  a  valid  consideration  moving 
from  the  bailor,  in  that  the  latter  agrees  that  the  for¬ 
mer  shall  not  have  to  take  the  oath  imposed  upon  him 
by  the  Law  of  Moses.  Both  parties  to  the  agreement 
are,  therefore,  bound  and  neither  may  retract  ( Tosafot 
to  Gemara  34b;  Rabbenu  Asher). 

50 


Bailments 


5i 


oath  (as  it  is  said  that  a  gratuitous  bailee  may, 
in  cases  of  theft  or  loss,  take  an  oath  and  is 
then  exempt  from  liability)  (2) ,  and  thereafter 
the  thief  is  found,  the  latter  must  pay  double 
the  value  of  the  article  stolen  (if  he  did  not  dis¬ 
pose  of  the  same  and  is  ready  to  surrender  the 
possession  thereof  to  the  owner)  If  the  thief 
has  slaughtered  the  animal  or  sold  the  article, 
he  must  pay  its  value  four  or  fivefold  (3) .  To 
whom  does  he  have  to  pay  the  penalty?  To 
him  who  has  kept  the  bailment  (4).  If  the 

(2) .  For  the  law  regarding  the  liability  of  a 
gratuitous  bailee,  vide  Chapter  VII,  Mishnah  VIII, 
infra. 

(3) .  The  thief  must  pay  fourfold  in  case  of  a  lamb, 
and  fivefold  in  case  of  an  ox.  The  reason  the  penalty 
is  greater  in  case  of  an  ox  is  that  the  owner  thereof 
has  been  deprived  of  its  use  while  it  was  in  the  thief’s 
possession,  which  is  not  true  with  a  lamb  as  it  is  not 
used  for  work. 

(4)  .  When  the  theft  took  place  the  bailee  had  only 
a  qualified  possession  of  the  bailment.  Still  the  thief 
must  pay  the  penalty  imposed  upon  him  by  law, 
because  the  bailee’s  possession  of  the  bailment  is 
deemed  in  law  to  be  the  possession  of  the  bailor. 
Hence,  when  it  was  stolen  from  the  bailee,  theft 
was  thereby  committed.  The  thief  must,  there¬ 
fore,  pay  the  penalty  imposed  upon  him  in  cases  of 


52 


Mishnah:  Baba  Meziah 


bailee  took  the  prescribed  oath  and  did  not 
pay,  and  thereafter  the  thief  is  found,  the  lat¬ 
ter  must  pay  double  the  value  of  the  article 
stolen,  and  if  he  slaughtered  the  animal  or 
sold  the  article,  he  must  pay  its  value  four 
or  fivefold.  To  whom  does  he  then  have  to 
pay  the  penalty?  To  the  owner  of  the  bail¬ 
ment  (5). 

Mishnah  II.  One  hires  a  cow  from  his 

theft,  to  the  bailee,  when  the  latter  elects  to  pay, 
or  promises  to  pay,  for  the  bailment,  because  by 
reason  of  such  payment  or  promise  he  is  subrogated 
to  the  rights  of  the  bailor  and  becomes  entitled  to  the 
penalty. 

(5) .  The  thief  must  pay  the  penalty  in  this  case  to 
the  bailor  because,  as  stated  hereinbefore,  the  bailee’s 
possession  is  in  law  deemed  to  be  the  possession  of  the 
bailor  also.  The  law  regarding  theft  is,  therefore, 
applicable  in  such  cases  to  the  bailor  as  well  as  to  the 
bailee,  and  either  party  may  institute  an  action 
against  the  thief  to  recover  the  penalty  as  well  as  the 
chattel. 

In  the  eyes  of  the  law,  the  oath  taken  by  the  bailee 
is  in  lieu  of  payment  for  the  bailment  which  was  either 
stolen  or  lost.  Such  oath,  however,  according  to  this 
anonymous  opinion,  has  the  effect  of  exonerating  him 
from  liability,  but  does  not  suffice  to  vest  title  in  him 
to  the  bailment  and  to  subrogate  him  to  the  rights  of 
the  bailor. 


Bailments 


53 


neighbor,  and  loans  it  to  some  one  else  (6). 
(While  in  the  borrower’s  possession),  the  cow 

(6).  It  is  a  well  established  principle  in  Jewish  law, 
that  a  bailee  is  liable  in  every  case  if  he  delegates  the 
trust  reposed  in  him  by  the  bailor.  (View  of  Rabbi 
Johanan  Gemara  36a.)  There  is,  however,  a  di¬ 
versity  of  opinion  as  to  the  true  reason  underlying  such 
principle  of  law.  Abayi  (/.  c.)  says  that  the  reason  a 
bailee  is  liable  in  such  a  case  is,  that  the  bailor  may 
claim  that  he  is  unwilling  to  have  his  property  en¬ 
trusted  to  anybody  else  but  the  bailee.  When  the 
bailee,  therefore,  delegates  the  trust  reposed  in  him  by 
the  bailor,  he  is  guilty  of  a  tort  and  is  consequently 
liable  even  when  the  bailment,  while  in  the  bailee’s 
possession,  has  been  destroyed  or  taken  away  by  a 
superior  force  or  an  unavoidable  occurrence.  If  it 
is  proven,  however,  by  the  bailee  that  the  bailor  pre¬ 
vious  thereto  was  accustomed  to  entrust  his  property 
in  the  custody  of  such  sub-bailee,  he  is  not  liable  (l.c.). 
According  to  this  view,  then,  the  Mishnah  now  under 
discussion  must  be  explained  that  the  hirer  has  loaned 
the  cow  in  question  with  the  consent  of  the  owner. 
Otherwise,  the  hirer  would  be  held  liable  even  when  it 
is  proven  by  him  that  the  cow  had  died  a  natural 
death,  because  the  hirer  having  delegated  his  trust 
without  the  owner’s  consent,  would  be  guilty  of  a  tort 
and  would  then  he  held  liable  in  every  case  (l.c.). 

Rabba  (Gemara  36b)  is  of  the  opinion  that  the  rea¬ 
son  a  bailee  is  liable  when  he  delegates  his  trust  is  that 
the  agreement  between  the  bailor  and  the  bailee,  con¬ 
senting  that  the  latter  be  exempt  from  liability  by 
taking  the  biblical  oath  where  such  is  applicable,  does 


54 


Mishnah :  Baba  Meziah 


dies  a  natural  death;  the  hirer  has  then  to 
take  an  oath  that  it  died  a  natural  death,  and 
the  borrower  (who  is  liable  in  such  cases)  (7) , 
must  pay  the  value  of  the  cow  to  the  hirer  (8) . 

not,  unless  stipulated  to  the  contrary,  extend  be¬ 
yond  the  person  of  the  bailee.  (This  view  is  upheld  by 
Alfasi,  Rabbenu  Asher  and  many  other  jurists.) 
When  no  necessity  has  arisen  for  the  sub-bailee  to  take 
an  oath,  as  for  instance  when  there  are  witnesses  to  tes¬ 
tify  to  the  effect  that  he  was  not  guilty  of  negligence, 
and  that  the  circumstance  causing  the  loss  or  the  theft 
of  the  animal  was  such  as  would  exonerate  the  bailee 
from  liability,  or  when  the  bailee  himself  is  capable 
of  taking  an  oath  to  substantiate  this,  having  been  an 
eyewitness  to  the  occurrence,  then  the  bailee  is  not 
liable  ( Tosafot  to  36b;  Mordecai ,  Sect.  270);  since 
according  to  Rabba’s  view  the  delegation  of  a  bailee’s 
trust  in  and  for  itself  does  not  constitute  a  tort.  In 
accordance  with  the  latter  view,  therefore,  the  de¬ 
cision  of  this  Mishnah  can  be  upheld  on  the  theory  that 
the  hirer  has  witnessed  the  accident.  For,  from  the 
fact  that  an  oath  is  imposed  upon  the  hirer  to  sub¬ 
stantiate  the  statement  that  the  cow  has  died  a  natu¬ 
ral  death  while  in  the  possession  of  the  sub-bailee, 
it  is  evident  that  he  was  then  present.  Otherwise  no 
oath  could  be  imposed  upon  him  if  the  statement  be 
based  upon  mere  hearsay. 

(7) .  As  to  the  extent  of  liability  of  a  hirer  and  that 
of  a  borrower,  vide  Mishnah  VIII,  Chapter  VII,  infra. 

(8)  .  This  tanna  is  of  the  opinion  that  the  owner  can 
obtain  no  recovery  from  the  borrower  because  there 


Bailments 


55 


Said  Rabbi  Jose:  “How  (can  this  be)?  Shall 
this  man  do  business  with  his  neighbor’s 
cow?  The  cow  (or  the  value  thereof)  must, 
therefore,  be  returned  to  the  owner  ”  (9). 

was  no  contractual  relation  existing  between  the  par¬ 
ties.  According  to  Abayi’s  view,  this  tanna’s  decision 
means  that  the  bailor  has  not  expressly  authorized  the 
hirer  to  effect  such  loan,  but  that  he  simply  said  to  the 
hirer:  “You  may  do  so,  if  you  so  desire”  ( Gemara 
36a).  A  consent  expressed  in  the  form  as  aforesaid,  is 
construed  by  the  court  to  mean  that  the  bailor  con¬ 
sented  only  to  exonerate  thereby  the  hirer  from  being 
liable  in  every  case  as  a  tort-feasor,  but  that  he  did  not 
intend  thereby  to  sever  the  contractual  relation  al¬ 
ready  existing  between  him  and  the  hirer  and  make  a 
new  contract  with  the  sub-bailee. 

The  only  recovery,  therefore,  the  bailor  is  entitled  to 
in  a  case  like  the  one  under  discussion  is  against  the 
hirer,  and  not  against  the  sub-bailee,  as  there  was  no 
contractual  relation  existing  between  the  bailor  and  the 
sub-bailee.  The  bailor  can  compel  the  hirer,  in  the  ca¬ 
pacity  of  a  bailee  for  hire,  either  to  take  an  oath  that 
the  animal  died  a  natural  death,  or  else  pay  for  it, 
while  the  hirer  may  institute  an  action  against  the 
borrower. 

(9).  According  to  Abayi’s  view,  Rabbi  Josh’s  opin¬ 
ion  rests  upon  the  theory,  that  as  long  as  the  hirer  has 
effected  the  loan  in  question  with  the  owner’s  consent, 
there  was  thereby  a  new  agreement  entered  into  be¬ 
tween  the  bailor  and  the  sub- bailee,  and  a  contractual 
relation,  therefore,  existed  between  such  parties. 


56 


Mishnah :  Baba  Meziah 


Mishnah  III.  If  one  says  to  two  persons: 
“I  have  robbed  one  of  you  of  one  hundred 
zuz,  but  I  do  not  know  who  it  is;  ”  or  he  says  to 
them:  “The  father  of  one  of  you  has  de¬ 
posited  one  hundred  zuz  with  me,  but  I  do  not 
know  whose  father,  ’  ’  he  must  then  pay  one 
hundred  zuz  to  one  and  one  hundred  zuz  to 
the  other,  as  he  himself  has  admitted  the 
liability  (io). 

Rabba’s  view  is  that  Rabbi  Jos6  is  of  the  opinion  that 
when  the  hirer  has  loaned  the  cow  in  question  to  the 
borrower,  the  law  presumes  that  he  has  done  so  in  the 
capacity  of  an  agent  on  behalf  of  the  bailor,  since  the 
liability  of  the  sub-bailee,  as  a  borrower,  is  greater 
than  that  of  the  bailee,  who  is  only  a  hirer.  A  quasi 
contractual  relation  is,  therefore,  existing  between  the 
bailor  and  the  sub-bailee  (Rabbenu  Asher) . 

(io).  This  decision  cannot  be  sustained  on  legal 
grounds,  for  it  is  well  established  that  the  plaintiff  has 
the  burden  of  proving  his  case  by  a  preponderance  of 
evidence  in  every  instance.  In  the  case  under  dis¬ 
cussion,  neither  of  the  plaintiffs  is  able  to  prove  his 
case,  because  the  cause  of  action  has  arisen  solely  by 
virtue  of  the  admission  made  by  the  defendant,  but 
he  claims  that  he  is  uncertain  to  whom  he  owes  the  sum 
he  admitted.  The  plaintiffs,  therefore,  not  being  in  a 
position  to  prove  their  case,  would  at  law  be  unable  to 
obtain  a  recovery,  and  the  defendant  would  be  held 
liable  in  the  sum  of  one  hundred  zuz  only  (Alfasi). 


Bailments 


57 


Mishnah  IV.  If  two  men  have  deposited 
money  with  one  person,  one  has  deposited  one 
hundred  zuz  and  the  other  two  hundred  zuz , 
and  thereafter  one  says:  “The  two  hundred 
zuz  are  mine,  ”  and  the  other  one  says:  “The 

This  decision,  however,  can  be  sustained  on  equitable 
principles  ( Gemara  37a;  Maimonides,  Laws  of  Rob¬ 
bery  and  Lost  Articles ,  Chapter  iv,  Law  10).  As  to 
the  conception  of  equity  in  Jewish  jurisprudence,  vide 
note  1 1  to  Chapter  IV,  infra. 

If,  however,  before  the  admission  was  made  by  the 
defendant,  both  plaintiffs  had  claimed  that  each  was 
robbed  of  the  sum  of  one  hundred  zuz ,  or  that  each  of 
their  fathers  had  deposited  such  sum  with  the  defend¬ 
ant,  then  both  would  be  entitled  to  a  recovery  by 
taking  an  oath  to  substantiate  their  claims.  For  the 
plaintiffs  were  guilty  of  no  negligence  whatever  in  the 
premises,  but  it  was  the  wrongful  act  of  the  defend¬ 
ant  in  the  first  case,  and  his  negligence  in  the  second 
case  in  that  he  did  not  take  any  precaution  to  be  able 
to  ascertain  the  party  that  deposited  with  him  the 
sum  he  admits,  that  has  caused  the  existing  doubt. 
He  must,  therefore,  bear  the  consequences  of  his 
wrongful  act  or  that  of  his  negligence,  because  the  law 
says  that  when,  from  the  status  of  facts,  it  becomes 
inevitable  that  one  of  the  parties  to  a  controversy 
must  necessarily  suffer  some  loss,  it  is  the  one  who  was 
guilty  of  a  wrong  or  of  negligence  that  must  suffer 
the  loss  (Alfasi;  Maimonides,  Commentary  on  the 
Mishnah ). 


58 


Mishnah :  Baba  Meziah 


two  hundred  zuz  are  mine,”  the  bailee  shall 
give  one  hundred  zuz  to  one  and  one  hundred 
zuz  to  the  other,  and  the  balance  shall  re¬ 
main  with  him  until  Elijah  will  come  (n). 
Said  Rabbi  Jose:  “If  so  (is  your  decision), 
what  will  the  deceiver  lose  therebv?  The 
whole  amount  shall,  therefore,  remain  with  him 
until  Elijah  will  come”  (12). 

( 1 1 )  .  Maimonides  interprets  the  text  in  the  Gemara 
37a  that  both  bailors  have  deposited  their  respective 
sums  of  money  in  one  package,  otherwise  the  bailee 
would  be  held  liable  as  he  was  guilty  of  negligence  in 
that  he  did  not  write  the  names  of  the  bailors  on  their 
respective  packages,  or  in  that  he  did  not  take  any 
other  means  by  which  he  could  ascertain  the  owner  of 
each  package. 

Rashi  interprets  the  above  text  of  the  Gemara  to 
mean  that  both  bailors  have  deposited  their  respective 
sums  of  money  at  one  and  the  same  time  and  in  one 
another’s  presence.  The  bailee  may,  therefore,  say 
to  the  bailors:  “If  you  have  trusted  one  another  and 
have  not  taken  the  necessary  precaution  in  order  to 
prevent  fraudulent  claims,  why  should  I  have  mis¬ 
trusted  or  suspected  you  and  take  precautions  for  the 
purpose  of  preventing  fraudulent  claims  that  could 
have  possibly  arisen  or  been  made  by  either  one  of 
you?” 

(12) .  Rabbi  Jose’s  opinion  is  that  the  deceiver,  not 
being  able  to  obtain  the  sum  actually  deposited  by 
him,  may  in  course  of  time  admit  the  truth.  The  de- 


Bailments 


59 

Mishnah  V.  The  same  is  the  case  with 
two  vessels  (when  deposited  by  two  bailors), 
one  of  which  is  worth  one  hundred  zuz,  and  the 
other  is  worth  two  hundred  zuz.  One  of  the 
bailors  says:  “The  bigger  vessel  is  mine,” 
and  the  other  one  says:  “The  bigger  vessel  is 
mine.”  The  bailee  shall  then  give  the  smaller 
vessel  to  one  of  them,  and  out  of  (the  money 
realized  from  the  sale  of)  the  bigger  vessel,  he 
shall  give  the  value  of  the  smaller  one  to  the 
other,  and  the  balance  shall  remain  with  him 
until  Elijah  will  come  (13).  Said  Rabbi  Jose: 
“  If  so  (is  your  decision) ,  what  loss  will  the  de¬ 
ceiver  sustain  thereby?  Both  vessels  shall, 

cision  of  the  anonymous  tanna,  however,  is  the  pre¬ 
vailing  law  (Maimonides,  Laws  of  Robbery  and  Lost 
Articles ,  Chapter  iv,  Law  10). 

(13) .  The  reason  why  the  principle  of  law  involved 
in  the  previous  Mishnah  is  repeated  in  the  present 
Mishnah  is  explained  in  the  Gemara  37b.  It  is  to  point 
out  that  even  in  the  case  where  the  controversy  be¬ 
tween  the  two  bailors  relates  to  two  vessels,  and  where 
the  owner  of  the  better  vessel  will  eventually  sustain 
some  loss  by  such  sale,  as  the  sale  will  not  realize  the 
amount  actually  paid  by  him  for  the  vessel,  still  the 
sages  maintain  their  view  that  it  must  be  sold,  and 
that  the  case  be  disposed  of  as  stated  in  the  text 


6o 


Mishnah :  Baba  Meziah 


therefore,  remain  with  the  bailee  until  Elijah 
will  come.  ” 

Mishnah  VI.  When  one  stores  fruit 
with  his  neighbor,  even  if  it  may  be  destroyed 
(by  decay  or  mice),  the  bailee  must  not  dis¬ 
pose  of  the  same  (14).  Rabban  Simeon  ben 
Gamaliel  says:  “He  must  sell  it  under  the 
supervision  of  the  court  (in  the  absence  of  the 
bailor) ,  because  he  is  in  such  a  case  considered 
as  the  one  who  restores  a  lost  article  to  its 
owner.  ” 

Mishnah  VII.  When  one  stores  fruit 
with  his  neighbor  (and  the  bailee  stores  the 
same  with  his  own  fruit,  so  that  he  is  unable  to 
ascertain  how  much  of  the  bailment  became 
decreased  by  reason  of  shrinkage  and  decay 
or  destroyed  by  mice),  the  bailee  may  deduct 
decreases  as  follows:  For  wheat  and  rice, 
nine  half  cabim  to  one  kor  (180  cabim)  \  for 
barley  and  millet,  nine  cabim  to  one  kor;  and 

(14).  This  rule  of  law,  however,  holds  true  only 
where  the  loss  of  the  fruit  stored  does  not  exceed  the 
limit  stated  in  the  following  Mishnah  ( Gemara  38a). 
The  anonymous  view  is  the  prevailing  law  (Mai- 
monides,  Laws  of  Loan  and  Bailment ,  Chapter  vu, 
Law  1). 


Bailments 


61 


for  spelt  and  linseed,  three  seahs  (18  cabim)  to 
one  kor.  All  depends  upon  the  measure  and 
the  length  of  time  such  fruit  has  been  stored 
(15).  Said  Rabbi  Johanan  ben  Nuri:  “  What 
do  the  mice  care?  Don’t  they  consume  the 
same  amount  whether  from  much  or  little? 
The  bailee  may,  therefore,  deduct  a  decrease 
of  one  kor  only”  (16).  Rabbi  Judah  says: 
“If  there  was  a  large  quantity  stored,  he  may 
deduct  no  decreases  whatever,  because  in  a 
case  like  this,  the  measure  of  the  fruit  in¬ 
creases”  (17). 

Mishnah  VIII.  The  bailee  may  deduct 
one-sixth  for  outage  of  wine;  Rabbi  Judah 
says:  “  One-fifth  only.”  He  may  deduct  three 
lugim  of  oil  to  one  hundred  lugim:  a  lug  and 

(15) .  The  bailee  may  deduct  the  measure  stated 
herein  for  each  and  every  kor  annually  ( Gemara  40a) . 

(16) .  This  tanna  is  of  the  opinion  that  the  bailee 
may  account  annually  for  the  decrease  of  one  kor  only, 
and  not  for  each  and  every  kor  stored.  His  view  does 
not  prevail. 

(17) .  Grain  was  generally  stored  in  the  summer 
and  returned  in  the  winter  months.  The  measure 
of  the  grain  thus  stored  was,  therefore,  increased  by 
reason  of  the  moisture  which  prevailed  in  the  winter 


season. 


62 


Mishnah :  Baba  Meziah 


one-half  for  lees,  and  a  lug  and  one-half  for 
the  absorption  by  the  vessel  (18).  If  the  oil 
stored  was  purified,  he  cannot  deduct  any  out¬ 
age  for  lees ;  if  the  vessels  (wherein  it  was  kept) 
were  old,  he  cannot  deduct  for  absorption. 
Rabbi  Judah  says:  “If  one  sells  purified  oil 
to  his  neighbor,  to  be  delivered  within  the 
period  of  one  year  in  small  quantities,  the 
buyer  undertakes  to  bear  the  outage  of  a  lug 
and  one-half  for  lees  to  each  and  every  one 
hundred  lugim  of  oil”  (19). 

(18) .  The  clay  of  which  the  vessels  were  made  in 
those  days  was  unimproved  and  unsuitable  for  the 
purpose  of  keeping  any  liquid  therein. 

(19) .  Rabbi  J udah  maintains  that  when  two  parties 
enter  into  an  agreement,  whereby  it  is  stipulated  that 
one  shall  sell  to  the  other  a  certain  measure  of  purified 
oil  to  be  delivered  sometime  in  the  future,  the  terms 
of  such  an  agreement  cannot  be  construed  to  mean 
that  the  vendor  must  deliver  purified  oil  of  the  measure 
stipulated,  and  bear  the  outage  for  lees  of  such  oil. 
The  terms  simply  import  an  obligation  upon  the  part 
of  the  vendor  that  he  must  deliver  the  oil  in  a  purified 
state,  i.  e .,  that  he  must  cleanse  the  oil  of  its  lees,  but 
that  the  vendee  must  bear  the  outage.  This  Rabbi 
being  of  the  opinion  that,  unless  expressly  stipulated  to 
the  contrary,  it  is  the  vendee  who  generally  undertakes 
to  bear  the  outage  of  lees  and  not  the  vendor. 


Bailments  63 

Mishnah  IX.  One  stores  a  cask  with  his 
neighbor,  and  does  not  assign  any  particu¬ 
lar  place  wherein  it  shall  be  kept.  There¬ 
after  the  bailee  removed  such  vessel  (from  the  • 
place  where  it  was  originally  placed  by  him 
soon  after  such  an  agreement  of  bailment  had 
been  entered  into  between  the  parties)  and  it 
was  broken  accidentally.  If  this  happened 
while  it  was  yet  in  his  hand  and  the  removal 
was  effected  by  him  for  his  own  benefit  or 
advantage,  he  is  liable;  but  if  the  removal 
was  effected  by  him  for  the  benefit  of  the 
cask  (in  order  to  remove  it  to  a  safer  place), 
he  is  not  liable.  If  it  was  broken  after  he 
had  replaced  it,  he  is  not  liable  whether 
such  removal  was  made  to  his  own  advan¬ 
tage  or  to  that  of  the  vessel  (20).  If  the 

The  prevailing  view,  however,  is  that  the  terms  of 
the  agreement  hereinbefore  mentioned  do  import  an 
understanding  between  the  contracting  parties  that 
the  vendor  shall  bear  the  outage  of  lees  and  shall  de¬ 
liver  purified  oil  of  the  entire  measure  stipulated 
(Alfasi  and  Maimonides). 

(20) .  A  logical  interpretation  of  this  Mishnah  would 
seem  to  be  that  when  it  is  said  that  the  bailee  removed 
the  cask  to  his  own  advantage ,  it  is  meant  thereby  that 


64 


Mishnah :  Baba  Meziah 


bailor  (at  the  time  the  agreement  of  such 
bailment  was  made)  did  assign  a  particular 
place  wherein  the  cask  should  be  kept  by 

the  bailee  desired  to  make  temporary  use  of  the  place 
wherein  the  bailment  was  kept  by  him.  Such  a  con¬ 
struction  of  the  text  would  entirely  eliminate  the 
question  of  conversion  from  the  first  case  stated  in 
the  text,  and  the  various  rules  of  law  laid  down  in  the 
Mishnah  could  be  reconciled  without  any  difficulty. 
Thus:  when  no  particular  place  is  assigned  by  the 
bailor,  and  the  bailee  thereafter  removes  the  bailment 
and  it  gets  broken  while  it  is  being  removed,  he  is  lia¬ 
ble  if  such  removal  was  effected  by  him  for  the  reason 
that  he  wanted  to  make  use  of  the  place  where  the 
bailment  was  kept.  By  so  doing  he  has  violated  an 
implied  trust  reposed  in  him  by  the  bailor  that  he 
should  keep  the  bailment  in  a  place  where  it  is  most 
secure,  and  not  where  it  is  most  convenient  for  the 
bailee.  But  if  the  accident  happens  after  the  re¬ 
placement  of  the  vessel,  then  the  bailee  is  not  liable  in 
any  event  because  he  is  then  restored  to  his  original 
position  of  an  ordinary  bailee  and  is  not  liable  in  cases 
of  a  simple  accident. 

When  the  bailor,  however,  has  assigned  a  particu¬ 
lar  place  for  his  bailment,  and  the  bailee  notwith¬ 
standing  removes  it  for  the  reason  that  he  wants 
to  make  temporary  use  of  the  place,  he  is  liable  even 
when  the  vessel  was  broken  after  he  had  replaced  it. 
He  is  then  guilty  of  conversion  and  is  considered 
as  a  tort-feasor  in  that  he  has  violated  an  express 
trust  reposed  in  him  by  the  bailor  that  the  bailment 


Bailments  65 

the  bailee  and  the  latter  removed  it  from 
such  place  and  it  was  broken,  if  the  re¬ 
moval  was  made  for  his  own  benefit,  he  is  lia- 

should  be  kept  in  the  particular  place  assigned  for  that 
purpose. 

The  Gemara  41a,  however,  interprets  the  text  of 
this  Mishnah  to  mean  that  the  bailee  has  effected  such 
removal  because  he  wanted  to  make  temporary  use  of 
the  cask ,  and  therefore  Rabbi  Johanan  (/.  c.)  con¬ 
tends  that  the  two  cases  stated  in  the  text  cannot  be 
reconciled  on  strict  principle.  He  sustains  the  view  of 
Rabbi  Akiba  ( Baba  Kama  118b)  that  if  one  steals  a 
lamb  from  the  flock  belonging  to  his  neighbor,  and 
thereafter  returns  such  lamb  to  the  place  wherefrom  it 
was  stolen,  but  does  not  notify  the  owner  of  such  re¬ 
turn,  and  thereafter  an  accident  to  the  lamb  occurs,  he 
is  liable.  A  thief  is  not  exonerated  from  being  liable 
as  a  converter  of  the  property  stolen  unless  he  makes 
restoration  thereof  and  gives  notice  of  such  restoration 
to  the  owner. 

In  the  first  case  as  presented  in  this  Mishnah 
where  the  bailee  takes  the  article  stored  with  him  for 
the  purpose  of  making  personal  use  thereof,  he  is  in  the 
eyes  of  the  law  considered  a  tort-feasor,  guilty  of  con¬ 
version.  When,  therefore,  he  returns  the  article  with¬ 
out  notifying  the  bailor  of  such  return,  he  should  be 
held  liable  even  when  the  accident  to  the  bailment 
has  happened  after  he  had  restored  it  to  its  place,  be¬ 
cause  he  did  not  notify  the  owner  of  such  restoration. 
His  view  is  sustained  by  Alfasi;  Maimonides,  Com¬ 
mentary  on  the  Mishnah. 


5 


66 


Mishnah :  Baba  Meziah 


ble  whether  this  happened  while  yet  in  his 
hand  or  after  he  had  replaced  it;  when  the 
removal  was  made  for  the  benefit  of  the  cask, 
he  is  not  liable  (21). 

Mishnah  X.  If  one  deposits  money  with 
his  neighbor  (for  safe-keeping) ,  and  the  bailee 
ties  it  up  in  a  package  and  carries  it  over  his 
shoulder  (22),  or  he  entrusts  it  to  his  minor  son 

(21) .  When  the  removal  is  effected  by  the  bailee  for 
the  safety  of  the  vessel  and  it  breaks  accidentally,  he  is 
not  liable  even  in  a  case  where  the  bailor  did  assign  a 
particular  place  wherein  the  bailment  should  be  kept, 
as  it  is  implied  as  a  matter  of  law  that  the  bailor 
has  assigned  that  particular  place  because  he  thought 
that  such  place  would  be  safest.  If  for  some  reason 
or  another  the  place  so  assigned  by  the  bailor  be¬ 
comes  unsafe,  and  the  bailee  consequently  removes 
it  to  a  safer  place  and  it  breaks  accidentally  either 
after  he  has  replaced  it  or  while  removing  it,  he 
is  not  liable,  because  there  is  an  implied  consent 
on  the  part  of  the  bailor  to  have  it  removed  in  such 
a  case. 

(22) .  When  money  is  deposited  with  a  bailee  for 
safe-keeping,  the  highest  degree  of  care  is  imposed 
upon  him,  because  money  is  more  apt  of  being  stolen  or 
lost  than  any  ordinary  article.  If,  therefore,  the  bailee 
carries  the  money  with  him,  he  must  keep  it  in  his 
hand;  if  he  keeps  the  money  in  his  house,  he  is 
obliged  to  deposit  it  in  the  safest  place  in  his  premises 
( Gemara  42a) . 


Bailments 


67 


or  daughter  (23),  or  he  does  not  lock  it  up 
safely,  he  is  liable  if  an  accident  occurs,  be¬ 
cause  he  did  not  take  the  precaution  imposed 
by  law  upon  bailees.  But  if  he  took  the 
precaution  required  by  law,  he  is  not  liable. 

Mishnah  XI.  When  one  deposits  money 
with  a  money-changer  (for  safe-keeping),  the 
latter  is  not  allowed  to  make  use  of  the  same  if 
it  is  tied  up  in  a  package  (24) ,  and  therefore  if 

(23)  .  If  a  bailee  entrusts  the  money  deposited  with 
him  to  his  children  who  are  of  age  or  to  his  wife  and  an 
accident  to  such  money  happens  while  in  their  custody, 
he  is  not  liable  if  it  was  carefully  kept  by  them.  The 
bailee  is  not  guilty  of  having  delegated  his  trust  in 
such  a  case,  because  it  is  implied  as  a  matter  of  law 
that  whenever  one  deposits  aught  with  his  neighbor, 
he  does  so  with  the  express  understanding  that  the 
bailee,  in  his  absence  from  his  house,  may  entrust  such 
bailment  to  any  member  of  his  family  who  is  capable  of 
taking  care  of  it  ( Gemara  36a  et.  seg.).  If,  however, 
the  bailment  is  not  carefully  kept  by  them  and  by 
reason  of  such  negligence  the  bailment  is  either  stolen 
or  lost,  the  bailee  is  liable  to  the  bailor  in  damages,  if 
such  sub-bailees  are  incapable  of  paying  ( Tosafot  to 
Gemara  42b). 

(24)  .  When  money  is  deposited  with  a  bailee,  a  pre¬ 
liminary  question  arises  whether  it  is  a  special  deposit 
or  a  loan.  When  money  is  deposited  with  a  private 
person,  he  may  not  use  it  whether  it  is  loose  or  sealed, 
because  it  was  presumed  by  the  bailor  that  the  bailee 


68 


Mishnah:  Baba  Meziah 


it  gets  lost,  he  is  not  responsible  (25) ;  if  the 
money  is  loose,  he  may  use  it,  and  therefore  if 

would  not  make  use  of  it  but  would  keep  it  in  a  safe 
place.  But  when  one  deposits  money  with  a  money¬ 
changer  who  has  constant  and  immediate  use  and  need 
of  money  in  his  business,  it  is  presumed  that  the 
bailor  has  deposited  such  money  with  the  express  in¬ 
tention  of  permitting  the  bailee  to  make  use  of  the 
same  whenever  he  would  so  desire,  and  the  latter  then 
becomes  liable  in  every  case  in  the  capacity  of  a 
debtor.  When,  however,  the  money  so  deposited  is 
contained  in  a  sealed  or  privately  knotted  bag,  this 
indicates  the  intention  of  the  bailor  that  he  has  not 
consented  to  the  money-changer’s  making  use  of  the 
same. 

(25).  When  the  bailee  is  not  permitted  by  law  to 
make  use  of  the  money  deposited  with  him,  he  is  con¬ 
sidered  a  gratuitous  bailee,  if  he  does  not  receive  any 
extra  compensation  from  the  bailor  for  the  taking  care 
of  the  same.  In  this  instance  he  is  not  liable  in  cases 
of  theft  or  loss  if  it  was  not  caused  by  reason  of  his 
gross  neglect.  But  when  he  is  permitted  by  law  to 
make  use  of  the  money,  he  is  then  considered  a  bailee 
for  hire  by  reason  of  such  privilege,  and  he  is  liable  even 
in  cases  of  ordinary  neglect  of  duty  whether  he  actu¬ 
ally  avails  himself  of  the  privilege  or  not  ( Gemara  43a ; 
Maimonides,  Laws  of  Loan  and  Bailment ,  Chapter 
vii,  Law  10).  If,  however,  the  bailee  does  make  actual 
use  of  the  money  so  deposited  with  him,  or  any  part 
thereof,  he  is  then  considered  a  debtor  and  is  liable  in 
every  case  (Alfasi;  Maimonides,  Commentary  on  the 
Mishnah) . 


Bailments 


69 


it  gets  lost,  he  is  responsible.  When  money  is 
deposited  with  a  private  person,  he  may  not 
use  it  whether  it  is  sealed  in  a  package  or  loose, 
and  therefore  he  is  not  responsible  in  case  it 
gets  lost.  A  storekeeper  is  considered  (in 
this  respect)  like  a  private  person;  such  is  the 
opinion  of  Rabbi  Meir.  Rabbi  Judah  says: 
“A  storekeeper  is  to  be  considered  like  a 
money-changer”  (26). 

Mishnah  XII.  When  a  bailee  converts  a 
bailment  to  his  own  use,  the  School  of  Shammai 
says:  “He  suffers  the  disadvantage  of  loss 
and  gain  (i.  e.,  he  must  pay  according  to  the 
original  value  of  the  bailment  in  case  of  de¬ 
preciation,  or  according  to  the  present  value  in 
case  of  a  rise  in  value) the  School  of  Hillel 
says:  “(He  must  pay)  as  at  the  time  the 
conversion  took  place;”  Rabbi  Akiba  says: 
“  (He  must  pay)  as  at  the  time  he  is  summoned 
to  court”  (27). 

(26) .  Rabbi  Judah’s  view  is  the  prevailing  law 
(Maimonides,  Laws  of  Loan  and  Bailment ,  Chapter 
vii,  Law  6). 

(27) .  The  Gemara  43b  says  that  the  diversity  of 
opinion  in  this  Mishnah  refers  to  a  case  where  the 
value  of  the  article  converted  has  increased  by  reason 


70 


Mishnah :  Baba  Meziah 


When  a  bailee  declares  his  intention  to  con¬ 
vert  a  bailment,  the  School  of  Shamai  says: 

of  a  certain  improvement,  and  not  that  the  market 
value  thereof  has  risen;  e.  g.,  when  the  bailee  converts 
a  cow  and,  while  in  his  possession,  it  brings  forth 
young  ones.  The  School  of  Hillel  then  holds  that  he 
must  not  return  such  offspring  to  the  bailor.  This 
interpretation  is  sustained  by  Alfasi  and  Maimonides, 
Commentary  on  the  Mishnah. 

When,  however,  the  bailee  converted  an  article 
which,  at  the  time  such  conversion  took  place,  was 
valued  at  one  zuz,  and  while  in  his  possession  the 
value  of  such  article  was  increased  to  four  zuzim ,  he 
must  pay  to  the  bailor  the  sum  of  four  zuzim ,  if  he 
destroyed  the  article  or  disposed  of  it  and  is  con¬ 
sequently  unable  to  return  it  to  the  owner.  The 
law  says  that  a  converter  must  return  the  article 
converted  to  the  owner  if  it  is  still  in  his  possession. 
The  actual  conversion,  therefore,  is  made  when  the 
bailment  is  intentionally  destroyed  or  disposed  of 
by  the  converter,  and  at  that  time  the  article  was 
of  the  value  of  four  zuzim.  If,  however,  the  article 
converted  was  stolen  from  the  possession  of  the 
bailee,  he  must  pay  one  zuz  only.  In  this  case  he 
is  held  liable  for  the  wrongful  taking  it  out  of  the 
possession  of  the  owner,  and  when  such  conversion 
took  place  the  value  of  the  article  was  one  zuz  only 
( Gemara  43a;  Maimonides,  Laws  of  Robbery,  Chap¬ 
ter  hi,  Laws  1-2).  In  brief,  all  converters  must  pay 
the  value  of  the  article  as  at  the  time  the  conversion 
took  place. 


Bailments 


7i 


“He  is  liable”;  and  the  School  of  Hillel  says: 
“He  is  not  liable  until  he  has  actually  con¬ 
verted  it;  as  it  is  said  (Ex.  xxn,  10) :  ‘that  he 
has  not  stretched  forth  his  hand  against  the 
property  belonging  to  his  neighbor’;  e.  g.,  if 
the  bailee  has  bent  down  the  cask  which  was 
stored  with  him,  and  has  taken  a  quarter  of 
a  lug  of  wine  therefrom,  and  thereafter  the 
cask  was  broken  (accidentally) ,  he  must  pay 
only  for  the  quarter  which  he  has  actually 
converted  (28);  but  if  he  picks  up  the  cask 
and  takes  a  quarter  of  a  lug  of  wine  there¬ 
from,  and  thereafter  it  was  broken  (acciden¬ 
tally),  he  must  pay  for  the  entire  value  of 
the  cask”  (29). 

(28)  .  The  bailee,  in  order  to  be  held  liable  as  a  con¬ 
verter  of  the  bailment,  must  perform  such  an  act  as 
would  in  law  be  sufficient  to  vest  title  in  the  vendee  in 
cases  of  bargain  and  sale  ( vide  Introduction  to  Chapter 
IV,  infra ) ,  but  the  mere  intention  of  the  bailee  to  take 
a  bailment  for  himself,  even  when  he  makes  a  dec¬ 
laration  of  such  an  intention  to  two  witnesses,  does  not 
constitute  conversion. 

(29)  .  When  the  bailee  lifts  up  the  bailment,  or  per¬ 
forms  any  act  which  would  in  law  be  sufficient  to  pass 
title  in  the  vendee  in  cases  of  bargain  and  sale,  it  is  im¬ 
plied  by  law  that  the  intention  of  the  bailee  was  to 


72 


Mishnah :  Baba  Meziah 


convert  the  same,  if  he  uses  any  part  of  it.  He  is  then 
liable  in  every  case,  because  he  is  guilty  of  a  tort.  It 
is,  however,  not  essential  that  he  shall  actually  take 
any  part  of  the  bailment  in  order  to  be  held  liable  as  a 
tort-feasor.  If  he  performs  any  act,  constituting 
legal  possession,  with  the  view  of  converting  it,  he  is 
guilty  of  a  tort  ( Gemara  44a;  Alfasi;  Maimonides, 
Laws  of  Robbery,  Chapter  hi,  Law  12). 


t 


CHAPTER  IV 

BARGAIN  AND  SALE  OF  PERSONALTY 

INTRODUCTION 

'T'HE  law  of  sales  of  personal  property  in- 
*  eludes  contracts  of  bargain  and  sale,  and 
contracts  of  barter  or  exchange.  The  former 
is  where  a  money  consideration  is  given  for 
the  property  sold;  the  latter  is  an  agreement 
by  which  the  parties  exchange  goods  for  goods. 

The  law  as  deducible  from  the  Pentateuch  is 

that  a  sale  becomes  consummated  upon  the 

buyer’s  payment  of  the  agreed  sum  of  the 

money  consideration,  and  thereupon  title  to 

the  subject-matter  of  the  sale  immediately 

vests  in  him.  The  risk  of  the  loss  of  such 

goods,  as  a  rule,  attends  the  ownership  of 

them.  Hence,  in  cases  of  bargain  and  sale, 

it  passes  with  the  title  to  the  buyer  as  soon 

as  the  sale  is  made  ( Gemara  47b).  If  the  sub- 

73 


74 


Mishnah :  Baba  Meziah 


ject-matter  of  the  sale  remains  with  the  sel¬ 
ler  after  the  consideration  therefor  has  been 
given,  it  is  the  buyer  who  bears  the  loss  when 
it  is  destroyed  by  fire  or  otherwise,  and  the 
seller  is  considered  a  gratuitous  bailee,  liable 
for  gross  neglect  only  ( Tosafot  to  Kidushin 
28b). 

The  Talmud,  however,  has  modified  the 
above  named  principle  of  law,  and  has  enacted 
that,  unless  stipulated  to  the  contrary,  the 
mere  payment  of  money  does  not  suffice  to 
consummate  a  bargain  and  sale.  In  order  to 
effect  a  sale,  it  is  necessary  that  there  shall 
be  an  actual  change  of  possession  of  the 
subject-matter.  When  the  buyer  takes  pos¬ 
session  of  the  goods  contracted  for  to  be  sold, 
the  sale  is  thereby  made,  and  title  to  them 
passes  to  him  immediately  whether  he  then 
pays  the  money  consideration  or  not.  If, 
therefore,  A  says  to  B:  “I  will  sell  you  my 
wheat  for  fifty  shekels,”  and  B,  accepting 
such  offer,  takes  the  wheat  into  his  possession, 
the  sale  is  considered  as  consummated.  Title 
to  the  wheat  at  once  vests  in  B,  although  he 
has  not  yet  paid  the  fifty  shekels  (Mishnah 


Introduction 


75 


II,  infra).  (As  to  the  various  modes  of  effect¬ 
ing  a  change  of  possession,  vide  Kidushin.) 

The  reason  for  the  aforesaid  modification 
of  law  is,  as  stated  by  Rabbi  Johanan  ( Gemara 
47b),  that  should  the  subject-matter  of  the 
sale  be  left  with  the  vendor  after  the  consider¬ 
ation  therefor  has  been  paid,  he  might  not 
make  proper  efforts  to  save  the  same,  should 
it  be  endangered  by  reason  of  an  accident  to 
his  premises.  The  reason  for  the  possible 
neglect  on  the  part  of  the  vendor  is  obvious. 
Title  to  the  subject-matter  of  the  sale  having, 
according  to  the  Mosaic  Law,  been  vested  in 
the  vendee  who  would  have  to  bear  the  loss, 
the  vendor,  as  a  gratuitous  bailee,  would  be 
held  liable  for  gross  negligence  only.  On  the 
other  hand,  should  the  title  still  remain  in  the 
vendor,  he  will  exert  all  possible  efforts  to  save 
it  because  the  loss  falls  on  him. 

When,  however,  the  reason  for  the  above 
modification  of  law  ceases,  as  for  instance  when 
the  goods  sold  are  already  in  the  possession  of 
the  vendee  in  the  capacity  of  a  bailee  or  that 
of  a  warehouseman,  the  Law  of  Moses  is 
abided  by  ( Gemara  49b;  sustained  by  Alfasi 


76  Mishnah :  Baba  Meziah 

and  Maimonides,  Laws  of  Sales ,  Chapter  hi, 
Law  6). 

The  following  principles  of  law  are  laid 
down  in  the  Talmud  with  reference  to  the 
formation  of  contracts  affecting  the  sale  of 
personal  property:  i.  A  binding  agreement 
cannot  be  created  by  mere  words;  e .  g.,  A 
says  to  B:  ‘‘Sell  me  your  wheat  for  a  certain 
sum  of  money,”  and  B,  in  reply,  says: 
“I  accept  your  offer.”  This  in  itself  does  not 
constitute  a  binding  agreement,  for  the  breach 
of  which  damages  could  be  recovered  at  law. 
The  Gemara  49a,  however,  maintains  that 
the  party  who  retracts,  after  such  negotiations 
have  taken  place,  is  not  considered  honorable 
in  his  dealings,  as  every  person  is  morally 
bound  to  abide  by  his  word.  2.  When  A, 
pursuant  to  B’s  acceptance  of  the  offer,  pays 
the  consideration  for  the  wheat  but  does  not 
take  it  into  his  possession,  and  thereupon  one 
of  the  parties  retracts,  such  party  is  guilty 
of  having  violated  a  moral  obligation  of  a 
higher  nature,  and  a  curse  is  imposed  upon  him 
for  such  violation,  but  no  action  at  law  lies 
therefor  (Mishnah  II,  infra). 


77 


Bargain  and  Sale 

Although  such  negotiations  are  not  legalfy 
binding,  the  Talmud  nevertheless  lays  down 
rules  of  law  as  to  when  they  shall  be  deemed 
consummated.  The  reason  for  these  rules  is 
that  the  Jewish  jurists  presumed  that  every 
person,  being  favored  with  a  presumption  of 
honesty,  would  not  only  forbear  to  violate 
a  legal  principle  of  law  for  which  a  remedy  has 
been  provided,  but  that  he  would  also  refrain 
from  violating  a  moral  obligation. 

In  the  case  of  barter,  where  the  consider¬ 
ation  is  an  exchange  of  goods,  it  is  only  neces¬ 
sary  that  either  party  to  the  agreement  shall 
take  actual  possession  of  the  article  to  which 
he  wishes  to  obtain  title.  By  such  an  act,  the 
barter  is  considered  concluded,  and  neither 
party  may  then  retract  (Mishnah  I,  infra). 

Mishnah  I.  (The  delivery  of)  gold  coins 
effects  the  purchase  of  silver  coins,  but  not 
vice  versa ;  (the  delivery  of)  copper  coins 
effects  the  purchase  of  silver  coins,  but  not 
vice  versa;  (the  delivery  of)  cancelled  coins 
effects  the  purchase  of  valid  coins,  but  not 
vice  versa;  (the  delivery  of)  bullion  effects  the 


78 


Mishnah :  Baba  Meziah 


sale  of  coins,  but  not  vice  versa  (i) ;  (the  deliv¬ 
ery  of)  chattels  effects  the  purchase  of  coins, 
but  not  vice  versa.  This  is  an  established 
rule  of  law :  (The  delivery  of)  a  chattel  effects 
the  exchange  of  another  chattel  (2). 

Mishnah  II.  E.  g.,  if  the  vendee  takes  the 
fruit  in  his  possession  and  does  not  pay  the 

(1) .  When  two  persons  enter  into  an  agreement, 
whereby  they  desire  to  effect  a  sale  of  different  species 
of  coins,  which  of  these  coins  is  to  be  considered  the  com¬ 
modity,  in  order  to  determine  who  of  the  contracting 
parties  is  the  vendee  and  who  must  acquire  possession  of 
such  coins  in  order  to  effect  the  consummation  of  such 
sale?  It  is  laid  down  in  this  Mishnah  that  the  superior 
coin  is  the  money  and  the  inferior  the  merchandise. 
Hence,  in  a  case  where  A,  the  owner  of  silver  coins, 
seeks  to  buy  the  gold  or  the  copper  coins  owned  by 
B,  and  takes  possession  of  them,  the  sale  is  then 
made,  and  neither  party  to  the  agreement  may  re¬ 
tract,  because  gold  and  copper  coins,  being  less  cur¬ 
rent  than  silver  ones,  are  considered  the  commodity 
in  the  transaction. 

(2) .  In  the  case  of  barter,  however,  where  the  con¬ 
sideration  is  an  exchange  of  goods,  we  do  not  stop  to 
dwell  upon  the  theory  as  to  what  goods  are  more  sale¬ 
able  and  of  greater  market  or  standard  value.  If 
either  party  to  the  barter  takes  possession  of  the  arti¬ 
cle  to  which  he  desires  to  obtain  title,  a  binding  barter 
is  thereby  made,  regardless  of  the  respective  qualities 
of  the  goods  to  be  exchanged. 


79 


Bargain  and  Sale 

money  therefor,  neither  party  may  retract; 
if  he  pays  the  money  but  does  not  take  the 
fruit  into  his  possession,  either  party  may 
retract.  Nevertheless  it  was  said  that  He 
Who  inflicted  punishment  upon  the  Genera¬ 
tion  of  the  Flood  (Gen.  vi-x)  and  the  Genera¬ 
tion  of  the  Scattered  (Gen.  xi,  i-io),  will  also 
punish  one  who  does  not  stand  by  his  word. 
Rabbi  Simeon  maintains  that  the  one  who  has 
possession  of  the  money  is  at  an  advantage  (3). 

Mishnah  III.  An  overcharge  of  four  silver 
denars  from  the  sum  of  every  twenty-four 
silver  denars ,  which  make  a  sela  (one-sixth 
of  the  purchase  price),  constitutes  overreach¬ 
ing.  How  much  time  is  given  to  the  deceived 
party  within  which  to  retract?  Until  he  is 
able  to  show  the  commodity  to  a  merchant  or 

(3).  This  tanna  is  of  the  opinion  that  when  the 
vendee  pays  the  money  consideration  but  does  not  take 
possession  of  the  subject-matter  of  the  sale,  it  is  the 
vendor  only  who  may  retract  but  not  the  vendee. 
His  view  is  not  the  prevailing  law,  for  if  one  party  to  an 
agreement  may  legally  retract,  the  transaction  is  a 
nudum  pactum ,  and  consequently  the  other  party  is 
likewise  not  bound  thereby  ( Gemara  47b ;  Maimonides, 
Laws  of  Sales,  Chapter  xn,  Law  15). 


8o 


Mishnah :  Baba  Meziah 


to  his  relatives  (4).  In  the  City  of  Lydda 
(in  South  Palestine),  Rabbi  Tarfon  decided 
that  an  overcharge  of  eight  silver  denars  to 

(4).  The  Jewish  law  took  precaution  whenever  it 
could  that  there  be  no  such  term  as  “  The  victim  of  the 
law.”  The  jurists  were  well  aware  of  the  fact  that 
the  leniency  of  the  law  might,  in  many  cases,  result  in 
a  great  number  of  litigations.  They,  however,  disre¬ 
garded  the  amount  of  trouble  it  might  entail,  because 
to  them  the  relative  rights  of  property  were  as  sacred 
as  natural  rights. 

It  is  the  last  named  reason  that  actuated  the  Jew¬ 
ish  jurists  to  extend  the  Mosaic  commandment  (Lev. 
xxv,  14):  “And  if  thou  sell  aught  to  thy  neighbor, 
or  buy  aught  of  thy  neighbor’s  hand,  ye  shall  not 
overreach  one  the  other,”  to  the  rule  of  law  as  laid 
down  in  the  present  Mishnah.  They  maintain  that 
in  every  agreement  of  bargain  and  sale,  there  is  a  con¬ 
dition  implied  by  law  to  the  effect  that  if  the  value  of 
the  subject-matter  of  the  sale  is  inadequate  to  the  con¬ 
sideration  paid  by  the  vendee,  to  the  amount  of  more 
than  one-sixth,  the  rule  of  caveat  emptor  (let  the 
buyer  beware)  is  then  not  applicable,  and  the  sale 
is  not  effective.  Being,  however,  that  any  rule  of 
law,  no  matter  how  just  in  its  inception,  cannot 
with  justice  be  extended  too  far,  only  a  reasonable 
time  is  given  to  the  party  so  deceived  within 
which  to  reconsider  the  terms  of  the  sale.  If  he  does 
not  rescind  the  sale  before  the  expiration  of  such 
a  reasonable  time,  the  bargain  is  considered  as  con¬ 
summated  and  the  deceived  party  has  no  redress. 


8i 


Bargain  and  Sale 

every  sela  (one-third  of  the  purchase  price)  con¬ 
stituted  overreaching,  and  the  merchants  of 
Lydda  were  pleased  with  his  decision.  When, 
however,  they  were  told  that  the  time  given 
to  the  deceived  party  within  which  to  re¬ 
tract  is  a  whole  day,  they  said  to  him  that 
he  should  let  them  abide  by  the  decision 
already  laid  down  (that  one-sixth  of  the 
purchase  price  constituted  overreaching) ; 
and  thus  they  abided  by  the  decision  of  the 
sages. 

Mishnah  IV.  The  law  of  overreaching 
applies  to  the  vendor,  as  well  as  to  the  vendee 
(5) ;  to  a  merchant  as  well  as  to  a  private  man. 

(5).  In  order  that  the  vendor,  as  well  as  the 
vendee,  may  be  protected,  it  is  implied  in  law  that  a 
sale  is  made  upon  the  condition  that  the  considera¬ 
tion  given  by  the  vendee  is  commensurate  to  the 
value  of  the  subject-matter  of  the  sale,  and  if  there  be 
an  undercharge  of  more  than  one-sixth,  the  sale  is  not 
to  be  binding  upon  the  parties. 

The  vendor,  in  the  case  of  undercharge,  however, 
has  no  limited  time  within  which  to  rescind  the  sale 
(Gemara  50b;  Maimonides,  Laws  of  Sales ,  Chapter 
xii,  Law  6).  The  vendee,  who  has  possession  of  the 
goods  bought  by  him,  is  able  to  make  inquiries  of  his 
relatives  or  a  merchant  as  to  the  nature  of  his  bar¬ 
gain  by  showing  them  such  goods.  But  the  vendor, 


82 


Mishnah :  Baba  Meziah 


Rabbi  Judah  says:  “The  law  of  overreaching 
does  not  apply  to  a  merchant”  (6).  The 
deceived  party  is  at  an  advantage:  he  may 
either  demand  the  return  of  his  money  (and 
rescind  the  sale),  or  recover  the  overcharge 
(and  confirm  the  sale)  (7). 

having  parted  with  his  goods,  has  no  such  means  by 
which  to  ascertain  whether  or  not  he  was  deceived. 
An  unlimited  time  is,  therefore,  given  to  him  within 
which  to  rescind  the  sale:  until  an  opportunity  will 
present  itself  to  him  of  buying  an  article  of  identical 
nature  and  thereby  ascertaining  whether  or  not  he 
has  been  deceived  (Gemara  51a). 

(6)  .  Rabbi  Judah  is  of  the  opinion  that  a  merchant, 
who  is  an  expert  in  appraising  commodities,  will  not 
erroneously  make  an  undercharge.  The  reason  he 
sold  his  merchandise  in  this  particular  instance  at  a 
sacrifice  is  that  he  probably  needed  the  money  for  the 
purpose  of  investing  the  same  in  a  more  paying  propo¬ 
sition.  Being  presumed  that  he  made  such  undercharge 
with  full  knowledge,  he  cannot  rescind  the  sale,  be¬ 
cause  in  such  a  case  he  is  not  protected  by  law  ( Ge¬ 
mara  51a).  The  prevailing  opinion,  however,  is  that 
a  merchant  is  not  to  be  discriminated  against  for  the 
reason  that  he,  too,  is  apt  to  make  an  erroneous  under¬ 
charge  (Maimonides,  Laws  of  Sales,  Chapter  xn,  Law 
8 ;  Rabbenu  Asher) . 

(7) .  The  law  regarding  remedies  in  cases  of  over¬ 
reaching  is  as  follows:  If  it  is  less  than  one-sixth  of 
the  purchase-price,  the  deceived  party  is  remediless; 


83 


Bargain  and  Sale 

Mishnah  V.  How  much  should  a  sela  (or  any 
other  kind  of  coin)  be  defaced,  and  the  law  of 
overreaching  should  not  apply  thereto  ?  Rabbi 
Meir  says :  “  Four  isars ,  one  isar  to  each  denar  ” 
(one  twenty-fourth) ;  Rabbi  Judah  says:  “Four 
pundiuns ,  one  pundiun  to  each  denar  ”  (one- 
twelfth);  Rabbi  Simeon  says:  “Eight  pund¬ 
iuns,  two  pundiuns  to  a  denar  (one-sixth)  (8). 

Mishnah  VI.  How  much  time  is  given  to 
the  deceived  party  within  which  to  retract 

if  it  is  one-sixth,  the  deceived  party  cannot  rescind  the 
sale,  but  has  the  remedy  of  recovering  such  over¬ 
charge  or  undercharge ;  if  it  is  more  than  one-sixth,  the 
sale  is  null  and  either  party  to  the  sale  may  rescind 
(i Gemara  50b;  Alfasi;  Maimonides,  Laws  of  Sales , 
Chapter  xii,  Laws  3-4). 

Rabbi  Zerachiah  ha-Levi  says  that  when  the  over¬ 
reaching  is  to  the  extent  of  more  than  one-sixth,  the 
deceived  party  may  rescind  the  sale  whether  the 
other  party  consents  thereto  or  not.  The  party  who 
has  deceived,  however,  has  the  right  of  rescission 
only  where  the  deceived  party  elects  to  affirm  the  sale 
and  seeks  to  recover  the  amount  of  overreaching; 
but  he  has  no  right  of  rescission  when  the  deceived 
party  elects  to  abide  by  such  sale  and  does  not  seek 
to  recover  the  amount  of  overreaching  ( Tosafot  to 
Gemara  50b) . 

(8).  The  view  of  Rabbi  Simeon  is  the  prevailing 
law  (Maimonides,  Commentary  on  the  Mishnah). 


84 


Mishnah :  Baba  Meziah 


(in  cases  of  coins)  ?  In  large  cities,  until  he  is 
able  to  show  it  to  a  money-changer  (9),  and 
in  villages,  until  the  Eve  of  Sabbath  (10). 
If,  however,  he  (who  gave  such  defaced  coins) 
recognizes  them  to  be  his,  he  is  bound  to 
accept  their  return,  even  after  the  expiration 
of  twelve  months  ( 1 1 ) ;  (but  if  he  refuses  to 

(9)  .  In  cases  of  coins,  the  time  within  which  the  de¬ 
ceived  party  may  retract  is  not  the  same  reasonable 
time  provided  for  in  cases  of  merchandise  (Mishnah  III, 
supra),  because  laymen  are  generally  incompetent  to 
appraise  money  ( Gemara  52b). 

(10) .  On  Fridays,  money-changers  were  accustomed 
to  visit  villages  and  small  towns  because  the  in¬ 
habitants  needed  some  coins  of  small  denominations 
wherewith  to  buy  food  for  Sabbath  (l.c.). 

( 1 1 )  .  The  owner  of  the  coins  is  bound,  by  the  prin¬ 
ciples  of  equity,  to  accept  them  after  the  expiration  of 
the  time  provided  for  by  law,  but  no  action  lies  against 
him  if  he  refuses  to  comply  with  such  an  obligation. 

By  the  term  equity,  known  in  the  Jewish  law  either 
as  ulaws  which  deal  with  principles  beyond  the  juris¬ 
diction  of  the  law,  ’ ’  or  as  ‘  ‘  laws  which  a  man  is  bound 
to  observe  in  order  to  satisfy  Heaven,  ”  was  meant 
that  every  individual  is  bound  by  a  divine  ordinance  to 
do  justice  to  his  fellow-man,  even  in  cases  where  the 
law  does  not  require  him  to  do  so.  As  a  rule,  the 
Jewish  law  knew  of  no  wrongs  which  were  remediless, 
and  consequently  there  arose  no  need  for  supplying 
equitable  remedies  for  wrongs. 


85 


Bargain  and  Sale 

accept  them  after  the  expiration  of  the  time 
provided  for),  the  deceived  party  has  nothing 

No  action  at  law  lay  for  a  violation  of  an  equitable 
principle.  Nevertheless,  Jewish  jurists  laid  down  prin¬ 
ciples  by  which  to  ascertain  when  there  could  possibly 
exist  a  moral  or  an  equitable  wrong  without  a  legal 
wrong,  because  it  was  presumed  that  no  man  would 
violate  an  ordinance  although  it  is  supported  by  a  moral 
obligation  only.  E.  g.,  A  gives  a  defaced  coin  to  B, 
and  B,  after  the  lapse  of  the  time  provided  for  by  law 
for  its  return,  offers  to  give  it  back  to  A.  If  the  latter 
refuses  to  accept  it,  he  is  not  guilty  of  a  legal  wrong,  and 
therefore  no  action  at  law  lies  against  him.  A  is  never¬ 
theless  bound  to  accept  the  coin  in  order  to  satisfy 
Heaven,  as  he  is  otherwise  guilty  of  violating  a  moral 
duty.  ( Vide  also  note  io  to  Chapter  III,  supra.) 

Such  an  obligation,  although  in  the  strict  sense  of  the 
word  purely  a  moral  duty  and  therefore  not  enforcible 
at  law  on  principle,  was  nevertheless,  as  we  find  in  a 
great  many  instances  in  the  Talmud,  rigidly  enforced 
by  the  Rabbis.  A  violation  of  a  rule  of  civil  law, 
known  in  Jewish  jurisprudence  as  'daws  relating  to 
dealings  between  man  and  man,  ”  involved  not  only 
a  legal  wrong  for  which  a  remedy  at  law  could  be  had, 
but  also  a  transgression  of  a  holy  command  and  there¬ 
fore  a  sin  against  God  for  which  no  action  lay.  The 
Rabbis,  therefore,  who  acted  not  only  in  the  capacity 
of  tribunals  to  determine  legal  rights  and  wrongs, 
but  likewise  performed  the  function  of  ministers  to 
safeguard  the  sacredness  of  the  religion,  very  fre¬ 
quently  took  the  liberty  of  enforcing  equitable  princi¬ 
ples  although  they  were  purely  moral  in  their  nature. 


86 


Mishnah :  Baba  Meziah 


but  mere  resentment  against  him.  A  coin 
(defaced  to  the  extent  hereinbefore  mentioned) 
may  be  used  for  the  purpose  of  redeeming  the 
second  tithe  (12)  without  any  fear  whatever, 
because  the  one  who  refuses  to  accept  such  a 
coin  is  considered  a  person  of  a  bad  disposition. 

Mishnah  VII.  Four  silver  denars  (one- 
sixth  of  a  sela)  constitute  overreaching;  a 
claim,  no  less  than  two  silver  denars  (or 
their  value)  (13);  an  admission  of  a  debt,  a 

(12) .  The  second  tithe  is  that  part  of  the  products 
of  the  soil  which  was  to  be  consumed  by  the  owner  in 
Jerusalem.  When,  however,  such  tithe  consisted  of  a 
burden  which  was  too  troublesome  for  the  owner  to 
convey  to  Jerusalem,  or  the  way  was  too  far,  the  owner 
of  such  tithe  was  allowed  to  redeem  it  with  money, 
adding  one-fifth  to  the  original  value  of  the  pro¬ 
ducts,  and  spend  the  money  in  Jerusalem  (Deut. 
xiv,  22-27). 

(13) .  A  makes  a  claim  against  B,  and  B  admits  a 
part  of  the  liability.  If  no  other  evidence  is  produced 
by  either  party,  B  must,  according  to  the  Law  of  Moses, 
pay  the  amount  he  has  admitted  owing,  and  take  an 
oath  as  to  the  balance  of  the  claim  he  has  denied 
( Shebuoth ,  Chapter  vi,  Mishnah  1).  When  the  de¬ 
fendant  admits  the  existence  of  the  transaction  which 
is  the  basis  of  the  claim  made  by  the  plaintiff,  a  pre¬ 
sumption  is  thereby  raised  in  favor  of  the  plaintiff. 
This  is  sufficient  proof  of  the  plaintiff’s  claim,  and  the 


87 


Bargain  and  Sale 

perutha  (the  smallest  coin  then  in  circulation). 
In  five  cases  the  value  of  a  perutha  is  pre¬ 
scribed:  i.  For  an  admission  of  a  debt.  2. 
For  the  betrothal  of  a  woman  (14).  3.  One 

who  benefits  by  a  perutha1  s  worth  of  the 
property  belonging  to  the  Sanctuary,  has 
committed  a  transgression  (15).  4.  One  who 
finds  an  article  worth  a  perutha  is  bound  to 

burden  is  then  cast  upon  the  defendant  to  rebut  the 
presumption  with  an  oath  and  thereby  balance  the 
plaintiff’s  evidence.  In  order  that  the  above  named 
rules  of  law  should  apply,  the  claim  made  by  the  plain¬ 
tiff  must  be  for  no  less  than  two  silver  denars ,  and  the 
part  admitted  by  the  defendant  must  be  for  no  less 
than  a  perutha.  If  the  defendant  in  such  a  case 
refuses  to  take  the  prescribed  oath,  he  must  pay. 

(14)  .  If  a  man  who  wishes  to  marry  a  certain  woman 
says  to  her:  “Thou  art  betrothed  to  me,  ”  and  such 
woman  accepts  the  offer,  this  agreement  is  sufficient 
to  make  it  a  valid  marriage,  if  the  acceptance  of  the 
offer  by  the  woman  is  supported  by  a  valid  consider¬ 
ation  from  the  man.  Even  when  the  amount  where¬ 
by  she  benefits  does  not  exceed  the  value  of  a 
perutha  it  is  a  valid  consideration.  ( Vide  Kidushin , 
Chapter  1,  Mishnah  1. 

(15) .  When  a  person  is  benefited  to  the  value  of  a 
perutha  from  the  property  of  the  Sanctuary,  he  must 
sacrifice  the  prescribed  offering,  and,  as  a  penalty, 
add  one-fifth  to  the  principal  whereby  he  was  benefited 
and  return  the  same  to  the  Sanctuary  (Lev.  xxn,  14). 


88 


Mishnah :  Baba  Meziah 


proclaim  it.  5.  He  who  has  robbed  his 
neighbor  of  the  value  of  a  perutha  and  has 
sworn  falsely,  must  return  it  to  the  robbed 
party  (personally),  even  should  such  party 
happen  to  be  at  that  time  at  Modai  (16). 

Mishnah  VIII.  There  are  five  instances  in 
which  a  man  must  add  one-fifth  (to  the  prin¬ 
cipal  amount):  1.  When  one  (who  is  not  a 
priest)  partakes  of  the  heave-offering  (17), 
or  the  heave-offering  of  the  first  tithe  of 
Demai  (crop  about  which  there  is  a  suspicion) 
(18),  or  the  priest's  share  of  the  dough  (Num. 

(16) .  A  personal  return  of  the  article  or  of  the 
amount  robbed  must  be  made  only  when  the  person 
who  has  committed  such  robbery  swore  to  deny  the 
fact,  and  thereafter  admitted  that  he  had  committed 
perjury  {Baba  Kama  103a). 

(17) .  The  heave-offering  was  that  part  of  the  pro¬ 
ducts  of  the  soil  which  was  to  be  given  by  all  hus¬ 
bandmen  to  the  Priest.  The  amount  thus  given  was 
in  no  case  less  than  one- sixtieth  of  the  products  {Demai) . 

(18) .  The  Levite  had  to  give  the  Priest  one-tenth 
of  the  tithe  given  to  him.  Ordinarily  ignorant  people 
were  unaware  of  the  existence  of  the  aforesaid  law.  It 
was,  therefore,  enacted  that  a  person,  upon  buying 
grain  from  an  ignorant  man,  must  set  aside  one-hun¬ 
dredth  part  for  the  Priest  before  he  was  allowed  to  con¬ 
sume  the  same.  It  is  probable  that  the  Levite  had 


89 


Bargain  and  Sale 

xv,  20),  or  the  first  ripe  fruit  (Lev.  n,  14)  (19). 
2.  When  one  redeems  the  fruits  of  a  planta¬ 
tion  in  its  fourth  year  (20),  or  of  his  second 
tithe  (21).  3.  When  one  redeems  an  article 

which  he  has  dedicated  to  the  Sanctuary  (Lev. 
xxvn,  9-20) .  4.  When  one  is  benefited  to  the 
value  of  a  perutha  of  the  property  belonging 
to  the  Sanctuary.  5.  When  one  has  robbed 
his  neighbor  of  the  value  of  (not  less  than)  a 
perutha  and  has  sworn  falsely, — in  all  these 
cases  one-fifth  must  be  added  to  the  principal. 

taken  his  tithe  when  the  grain  was  in  such  a  state  of 
growth  that  no  heave-offering  had  to  be  given  to  the 
Priest,  and  consequently  it  was  incumbent  upon  the 
peasant  to  set  it  aside  for  the  latter,  when  the  grain 
had  become  ripe  enough  for  a  heave-offering  to  be 
separated  ( Demai ). 

(19) .  All  the  offerings  enumerated  under  division 
one  are  classed  by  the  Mishnah  as  belonging  to  the 
same  class,  because  all  of  them  belong  to  the  Priest 
and  are  called  heave-offerings. 

(20)  .  When  one  plants  a  vineyard,  he  is  not  allowed 
to  eat  the  fruit  thereof  during  the  first  three  years. 
On  the  fourth  year,  he  must  bring  the  products  to  Jeru¬ 
salem  and  eat  them  there.  If,  however,  it  is  too  burden¬ 
some  for  him  to  carry  such  products,  he  may  redeem 
the  same  with  money,  adding  one-fifth  to  their  value 
and  spend  the  money  in  Jerusalem  (Lev.  xix,  23-25). 

(21) .  ( Vide  note  12,  supra.) 


90 


Mishnah :  Baba  Meziah 


Mishnah  IX.  To  the  following  the  law  of 
overreaching  does  not  apply:  Slaves,  real  prop¬ 
erty  (22),  documents  of  indebtedness  (23),  and 

(22) .  The  law  of  overreaching  does  not  apply  to 
cases  where  the  subject-matter  of  the  sale  is  real  prop¬ 
erty,  because  it  is  of  an  imperishable  and  ever-existing 
nature,  and  therefore  the  real  value  thereof  cannot  be 
estimated  by  the  courts.  Furthermore,  a  particular 
piece  of  property  may  have  peculiar  advantages  of 
location  and  vicinage,  which  no  other  piece  of  property 
may  possess.  One  piece  of  property,  therefore,  can¬ 
not  be  compared  with  another  one  in  order  to  esti¬ 
mate  its  value  and  determine  thereby  whether  there 
was  deception  in  this  particular  instance.  In  the  case 
of  a  slave,  the  master  may  compel  him  to  marry  a 
woman,  and  the  issue  of  such  marriage  will  also  belong 
to  the  master.  As  the  property  right  in  a  slave,  like 
the  property  right  in  realty,  is  ever-existing,  it  is  im¬ 
possible  for  the  courts  to  estimate  its  real  value,  and 
therefore  the  law  of  overreaching  does  not  apply  to  a 
case  where  a  slave  is  the  subject-matter  of  the  sale. 

The  Gemara  56b,  however,  states  no  reason  for  the 
rule  of  law  laid  down  in  this  Mishnah,  but  says  that 
this  rule  of  law  is  deduced  from  the  Pentateuch  (Lev. 
xxv,  14) ;  that  the  term  “  buy  aught  from  thy  neighbor's 
hand  ”  used  therein  applies  only  to  articles  which  are 
capable  of  being  delivered  from  one  person  to  another. 
It  further  maintains  that  slaves  are  in  every  case 
classed  as  real  property. 

(23) .  When  one  buys  a  document  of  indebtedness 
from  the  holder,  and  thereafter  he  is  unable  to  collect 


9i 


Bargain  and  Sale 

any  description  of  property  belonging  to  the 
Sanctuary  (24).  The  law  that  a  thief  must 
pay  double  the  amount  by  him  stolen  (when 
he  is  ready  to  return  the  stolen  property  to  the 
owner),  and  must  pay  four  or  fivefold  when 
he  disposed  of  such  property,  does  not  apply 
to  cases  where  the  above  named  articles  were 
stolen  (25) .  A  gratuitous  bailee  does  not  have 

anything,  he  cannot  rescind  the  sale  by  reason  of  his 
having  been  overreached.  The  Gemara  56b  says  that 
the  law  of  overreaching  applies  only  to  cases  where  the 
consideration  given  by  the  vendee  is  for  acquiring  im¬ 
mediate  possession  of  the  subject-matter  of  the  sale. 
When  documents  of  indebtedness  are  sold,  the  con¬ 
sideration  given  by  the  vendee  to  the  vendor  is  not  for 
the  possession  of  the  documents,  but  for  the  chose  in 
action  which  he  acquires,  the  documents  being  given 
to  him  only  for  the  purpose  of  enabling  him  to  produce 
evidence  by  which  to  prove  the  debt  and  the  assign¬ 
ment  thereof.  In  such  a  case,  therefore,  the  vendee, 
upon  effecting  the  sale,  assumes  the  risk  of  not  being 
able  to  collect  the  debt,  and  the  law  of  overreaching 
has  no  application  to  a  case  where  the  vendee  is  aware 
of  the  possibility  of  losing  all  he  paid  to  the  vendor. 

(24) .  The  Gemara  ( l .  c.)  says  that  the  law  of  over¬ 
reaching  applies  only  to  dealings  between  man  and 
man,  but  not  to  dealings  between  man  and  God,  and 
deduces  this  rule  of  law  from  the  term  thy  neighbor 
used  in  Lev.  xxv,  14. 

(25) .  The  thief  must  not  pay  the  penalty  in  these 


92 


Mishnah :  Baba  Meziah 


to  take  an  oath  (concerning  the  articles  enu¬ 
merated  above,  if  lost  or  stolen  while  in  his 
custody),  and  a  bailee  for  hire  does  not  have 
to  pay  for  them  (in  cases  where  he  is  otherwise 
liable).  Rabbi  Simeon  says:  “  To  such  arti¬ 
cles  belonging  to  the  Sanctuary  for  which  one 
has  responsibility,  the  law  of  overreaching 
does  apply;  but  to  those  articles  for  which  no 
one  is  responsible,  the  law  of  overreaching 
does  not  apply”  (26).  Rabbi  Judah  says: 

cases,  because  real  property  and  slaves  are  incapa¬ 
ble  of  being  stolen  as  they  are  always  deemed  in 
the  eyes  of  the  law  to  be  in  the  possession  of  their 
owner,  and  no  theft  can  be  committed  unless  there 
is  a  temporary  change  of  possession  from  the  owner 
to  that  of  the  thief.  When  property  belonging  to 
the  Sanctuary  is  stolen,  the  thief  is  exempt  from 
paying  the  penalty  because  it  was  not  stolen  from  a 
fellow  being . 

(26).  One  makes  a  vow  to  bring  a  burnt  offering, 
and  does  not  designate  any  particular  animal  which 
he  is  to  offer.  Thereupon  he  sets  aside  one  of  his 
animals  for  that  purpose,  and  if  such  animal  receives 
a  deformity  of  body  so  that  it  cannot  be  sacrificed  on 
the  altar,  he  must  then  offer  another  animal  in  order 
to  fulfill  his  vow.  If  he  then  sells  the  animal  with 
such  a  blemish,  the  law  of  overreaching  does  apply  to 
the  sale,  because  it  is  then  his  property  and  not  that 
of  the  Sanctuary.  If  he  vows  to  offer  a  particular 


93 


Bargain  and  Sale 

“  The  law  of  overreaching  does  not  apply 
to  cases  where  the  subject-matter  of  the 
sale  is  one  of  the  following:  Scrolls  of  the 
Law,  animals  or  pearls”  (27).  But  he  was 
told  (by  the  school)  that  the  articles  enu¬ 
merated  by  the  anonymous  tanna  are  con¬ 
clusive. 

Mishnah  X.  Just  as  there  is  an  imposition 
in  cases  of  bargain  and  sale,  so  there  is  a  wrong 
done  by  means  of  words.  One  must  not  say 
to  his  neighbor:  “For  how  much  will  you 

animal  as  a  sacrifice,  and  thereupon  such  animal  re¬ 
ceives  a  blemish,  he  must  not  substitute  another  one 
in  its  stead.  When  he  sells  such  an  animal,  the  law 
of  overreaching  does  not  apply  to  the  sale,  because  it 
is  then  the  property  of  the  Sanctuary.  Rabbi  Simeon’s 
view  does  not  prevail;  Maimonides,  Commentary  on 
the  Mishnah. 

(27).  Rabbi  Judah  is  of  the  opinion  that  not  only 
has  the  law  of  overreaching  no  application  to  cases 
where  the  subject-matter  of  the  sale  is  such  as  is  im¬ 
possible  of  being  estimated  by  the  courts  on  account 
of  its  ever-existing  nature,  but  that  it  likewise  has  no 
application  to  cases  where  personal  property  is  sold, 
if  such  personalty  either  has  a  pretium  faciendi ,  or  a 
value  from  some  other  peculiar  cause,  and  therefore  it 
is  absolutely  impossible  for  the  courts  to  estimate  its 
value.  His  view  is  not  the  prevailing  law;  Alfasi, 


94 


Mishnah :  Baba  Meziah 


sell  me  this  article,”  while  he  has  no  intention 
of  buying  the  same.  One  must  not  say  to  a 
person  who  has  repented:  " Recollect  thy 
former  deeds.”  One  must  not  say  to  a  de¬ 
scendant  from  proselytes:  "Recollect  the 
deeds  of  thy  forefathers,”  as  it  is  written 
(Ex.  xxxii,  20):  "And  a  stranger  thou  shalt 
not  vex,  nor  shalt  thou  oppress  him”  (28). 

Mishnah  XI.  One  must  not  mix  together 
fruits  from  various  fields  (29),  even  when  the 
fruits  of  such  fields  are  all  old,  much  less  may 
he  do  so  when  he  substitutes  new  for  old. 
Indeed  it  was  said  that  in  cases  where  the 
subject-matter  of  the  sale  is  wine,  the  seller 

quoting  Rab  Hai  Goan ;  Maimonides,  Laws  of  Sales, 
Chapter  xn,  Law  8. 

(28) .  Maimonides  in  his  Commentary  on  the  Mish¬ 
nah  says  that  a  violation  of  any  of  the  rules  of  law  enu¬ 
merated  in  this  Mishnah  is  much  graver  a  crime,  and 
is  considered  a  much  greater  violation  of  the  principles 
of  morality,  than  overreaching  in  cases  of  bargain  and 
sale. 

(29) .  Only  when  the  field,  out  of  which  the  fruits 
contracted  for  to  be  sold  were  to  be  produced,  was 
expressly  mentioned  in  the  agreement  he  had  entered 
with  the  vendee,  he  is  not  permitted  to  mix  fruits  of 
different  fields  (Rashi  to  Gemara  59b). 


95 


Bargain  and  Sale 

may  mix  strong  with  mild  (30).  One  must 
not  mix  the  lees  of  one  wine- jug  with  another, 
but  he  (the  seller)  may  give  him  (the  pur¬ 
chaser)  the  lees  belonging  to  the  wine  sold. 
If  his  wine  gets  adulterated  with  water, 
he  must  not  sell  it  in  his  store  at  retail, 
unless  he  informs  the  buyers  of  such  fact ;  and 
he  must  not  sell  it  to  a  merchant,  however, 
even  when  he  informs  him  of  the  fact,  because 
a  merchant  buys  it  only  with  the  intention  of 
deceiving  consumers.  In  a  place  where  it  is 
customary  to  mix  water  with  wine,  it  may  be 
done  so  (31). 

Mishnah  XII.  A  merchant  may  buy  grain 
from  five  different  granaries  and  put  it  into 
one  store-room  (for  the  purpose  of  selling  the 

(30) .  The  vendor  is  permitted  to  mix  strong  wine 
with  mild  only  when  the  agreement  calls  for  mild 
wine,  but  when  it  calls  for  strong  wine,  he  is  not  al¬ 
lowed  to  mix  mild  therewith  (Rashi  to  Gemara  60a). 
Rabbenu  Asher,  however,  allows  it  even  in  the  last 
named  instance. 

(31) .  One  is  allowed  to  mix  water  with  wine 
in  this  case,  because  the  buyers,  by  reason  of  the 
prevailing  custom,  are  aware  of  such  adulteration 
and  consequently  are  not  deceived  thereby  (Rashi  to 
Gemara  60a). 


96 


Mishnah :  Baba  Meziah 


same);  he  may  likewise  buy  wine  from  five 
different  presses  and  put  it  into  one  cask, 
provided  he  has  not  the  intention  of  mixing 
it  (32).  Rabbi  Judah  says:  “A  storekeeper 
is  not  permitted  to  distribute  parched  ears  or 
nuts  to  little  ones,  because  he  induces  them 
thereby  to  buy  all  their  necessities  at  his 
place”;  the  sages  allow  it  (33).  He  further 
maintains  that  a  storekeeper  is  not  allowed  to 
sell  below  (spoil)  the  current  market  price. 
The  sages  say  that  we  have  to  be  grateful  to 
him  for  such  an  act  (34).  A  store-keeper 
must  not  sift  pounded-beans  (35).  The  sages 

(32)  .  A  merchant  is  permitted  to  mix  and  sell  fruits 
of  different  fields  because  the  buyers  are  aware  of  the 
fact  that  a  merchant  generally  buys  fruit  from  vari¬ 
ous  dealers  or  peasants,  and  therefore  are  not  de¬ 
ceived  thereby,  unless  the  merchant  makes  a  false 
representation  that  the  fruits  have  been  produced  by 
one  and  the  same  field  (Rashi  to  l.  c.). 

(33) .  The  view  of  the  sages  is  the  prevailing  law 
(Maimonides,  Commentary  on  the  Mishnah). 

(34) .  The  Gemara  60b  says  that  the  sages  allow 
it  for  the  reason  that  it  will  encourage  competition. 
Their  view  is  upheld  by  Maimonides  and  many  other 
jurists. 

(35) .  He  must  not  separate  the  waste  from  the 
beans  and  sell  them  at  a  higher  price  than  if  they  re- 


97 


Bargain  and  Sale 

permit  it;  they,  however,  admit  that  he  must 
not  sift  the  beans  only  from  the  top  of  the  bin, 
because  this  tends  to  deceive  the  eye  (of  the 
purchaser).  The  embellishment  of  slaves, 
animals  or  implements  (that  are  to  be  sold) 
is  prohibited  (36). 

mained  unsifted,  because,  as  there  is  no  fixed  market 
price  for  sifted  beans,  there  may  be  room  open  for 
deception. 

(36).  The  seller  must  not  dye  a  bondman’s  gray 
beard  black;  nor  drug  an  animal  so  as  to  raise  and 
stiffen  its  hair ;  nor  paint  old  implements  to  make  them 
look  like  new,  because  this  tends  to  deceive  purchasers. 


CHAPTER  V 


USURY  AND  USURIOUS  CONTRACTS 


INTRODUCTION 


HE  law  prohibiting  usury  is  based  upon 


1  the  commandment  of  the  Pentateuch 
(Lev.  xxv,  37):  “  Thy  money  shalt  thou  not 
give  him  upon  usury,  nor  lend  him  thy  vic¬ 
tuals  for  increase.”  In  interpreting  this  com¬ 
mandment,  the  Talmud  says  that  the  taking 
of  any  kind  of  interest,  no  matter  how  trivial, 
is  prohibited  by  the  Mosaic  Law.  The  Tal¬ 
mud  likewise  draws  a  distinction  between 
biblical  and  rabbinical  usury. 

Usury  as  prohibited  by  the  Pentateuch  is 
direct  or  express  interest;  usury  as  prohibited 
by  the  Talmud  is  indirect  or  contingent  inter¬ 
est.  I.  e .,  the  Law  of  Moses  prohibits  any 
loan  when  effected  by  the  parties  with  the 


99 


Usury 

express  understanding  that  the  lender  shall 
receive  some  compensation ;  while  the  Talmud 
forbids  any  transaction  or  negotiation  which, 
although  legitimate  in  its  inception,  may 
ultimately  result  in  a  usurious  transaction. 
Illustrations  of  the  last  named  rule  of  law 
will  be  found  in  the  Mishnahs  which  follow. 

Direct  interest  may  be  recovered  by  the 
borrower  from  the  lender  during  the  lifetime 
of  the  latter,  but  not  from  his  heirs;  indirect 
interest  cannot  be  recovered  at  all  ( Gemara 
6ib,  62a,  Alfasi  and  Maimonides,  Laws  of 
Creditor  and  Debtor ,  Chapter  vi,  Law  5; 
Chapter  iv,  Law  4,  6). 

A  defense  of  usury  is  not  available  at  law. 
A  suit  can  be  sustained  by  the  lender  to  re¬ 
cover  back  the  money  actually  lent,  but  not 
the  interest  thereon  ( Gemara  72a;  Maimonides, 
l.  c.y  Chapter  iv,  Law  6). 

Mishnah  I.  What  is  to  be  considered  usury 
(which  is  forbidden  by  the  Law  of  Moses), 
and  what  is  to  be  considered  an  increase 
(which  is  prohibited  by  the  Rabbis)?  Usury 
is  when  one  lends  a  seta  (four  denars)  for 


100 


Mishnah :  Baba  Meziah 


five  denars ,  or  two  seahs  of  wheat  for  three — 
(this  is  forbidden)  because  it  is  usurious. 
And  what  is  considered  an  increase?  A 
person  buys  wheat  from  his  neighbor  at  a 
golden  denar  (twenty-five  silver  denars)  a 
kor  and  such  was  the  current  market  price 
(i) ;  the  price  of  wheat  subsequently  advanced 
to  thirty  silver  denars  a  kor ;  whereupon  the 
buyer  says  to  the  seller:  “Give  me  my  wheat, 
as  I  wish  to  sell  it  and  buy  wine  with  the  money 
realized  therefrom.”  The  seller  then  says: 
“Your  wheat  is  sold  to  me  for  thirty  denars  a 
kor ,  and  I  will  give  you  wine  for  that  amount,” 
but  he  has  no  wine  in  his  possession  (2). 

(1) .  The  vendor  does  not  deliver  the  wheat  to  the 
vendee  immediately  upon  the  making  of  the  agree¬ 
ment,  but  agrees  to  deliver  it  whenever  requested  by 
the  vendee.  (As  to  the  validity  of  this  transaction, 
vide  note  18,  infra). 

(2) .  A  is  indebted  to  B  in  a  certain  sum  of  money, 
say  one  hundred  denars.  When  the  debt  becomes  due, 
A  agrees  to  pay  it  with  merchandise,  say  one  hundred 
kors  of  wheat  at  the  rate  of  one  denar  per  kor}  which  is 
the  current  market  price.  A  has  no  wheat  then  for 
immediate  delivery,  but  agrees  to  deliver  the  stipula¬ 
ted  measure  of  wheat  at  some  time  in  the  future.  Such 
a  transaction  is  prohibited  as  usurious,  because  the 
value  of  the  one  hundred  kors  of  wheat  agreed  to  be 


Usury  ioi 

Mishnah  II.  The  creditor  must  not  live 


delivered  by  A  may  in  the  meantime  advance,  and 
thus  B  in  return  will  receive  more  value  than  the  actual 
amount  he  loaned  to  A. 

If,  however,  A,  at  the  time  of  the  formation  of  the 
above  mentioned  agreement,  is  possessed  of  the  wheat, 
it  is  not  then  a  usurious  transaction,  because  title  to 
such  wheat  passes  immediately  to  B  upon  his  agreement 
to  accept  the  wheat  in  payment  of  his  debt.  And  if 
the  price  of  the  wheat  thereafter  advances,  it  is  then 
B’s  merchandise  which  has  so  advanced  in  value 
{Gemara  66a;  Alfasi  and  Maimonides). 

An  agreement  of  the  aforesaid  nature  is  not  en- 
forcible  at  law,  because  the  vendee  did  not  take  the 
subject-matter  of  the  sale  into  his  possession.  (See 
Introduction  to  Chapter  IV,  supra).  There  is  never¬ 
theless  a  moral  obligation  imposed  upon  the  parties 
not  to  rescind  the  sale,  and  it  was  therefore  presumed 
by  the  Jewish  jurists  that  the  parties  would  not  recede 
from  the  agreement  ( Tosafot  to  Gemara  62b). 

In  the  case  cited  in  the  text,  the  seller  owes  the 
buyer  a  certain  quantity  of  wheat,  say  ten  kors ,  which 
is  of  the  value  of  twenty-five  silver  denars  per  kor. 
When  delivery  has  to  be  made,  pursuant  to  their 
agreement,  the  price  of  wheat  has  advanced  to  thirty 
silver  denars  per  kor ,  and  the  seller  agrees  to  deliver 
wine  to  the  buyer,  at  the  then  fixed  market  price,  for 
the  value  of  ten  kors  of  wheat  at  thirty  denars  per 
kor ,  but  has  no  wine  ready  for  delivery.  This  trans¬ 
action  is  prohibited  by  law  as  usurious,  because  the 
seller  by  virtue  of  the  said  agreement  becomes  in¬ 
debted  to  the  buyer  for  the  value  of  ten  kors  of  wheat 


102 


Mishnah:  Baba  Meziah 


in  his  debtor’s  court-yard  gratis  ‘(3),  or  even 
at  a  reduced  rent,  it  being  usury.  Rent  may 
be  increased  but  not  the  purchase-price;  e.  g., 
the  owner  lets  his  court-yard  to  a  tenant  and 
stipulates:  “If  you  pay  me  now  in  advance 
(for  the  entire  year),  you  shall  have  it  for  ten 

at  thirty  denars  per  kor ,  and  agrees  to  pay  the  debt 
with  wine  which  he  will  subsequently  obtain.  The 
debt  can  be  considered  as  paid  only  upon  the  actual 
delivery  of  the  wine  to  the  creditor,  because  title  can¬ 
not  pass  to  a  thing  not  possessed  by  the  seller  at  the 
time  the  sale  is  effected  ( Gemara  66b;  Yebamoth  93a; 
Maimonides,  Laws  of  Sales ,  Chapter  xxn,  Law  2) ; 
and  when  the  seller  will  have  wine  ready  for  delivery, 
the  price  thereof  may  have  advanced.  Yet  the  seller, 
by  virtue  of  the  terms  of  the  agreement,  will  have  to 
deliver  to  the  buyer  the  measure  of  wine  stipulated  for 
irrespective  of  its  present  market  value.  The  buyer, 
who  is  now  considered  a  mere  lender,  will  consequently 
receive  more  than  he  is  actually  entitled  to. 

(3) .  The  lender  is  not  allowed  to  occupy  the  borrow¬ 
er’s  court-yard  even  in  a  case  where  such  court-yard 
is  vacant,  the  owner  having  no  intention  of  letting  the 
same  or  of  realizing  anything  therefrom,  and  the  lender 
not  being  benefited  by  such  occupation  because  he  has 
a  court-yard  of  his  own  ( Gemara  64b;  Alfasi;  Mai¬ 
monides,  Laws  of  Creditor  and  Debtor  Chapter  vi,  Law 
2).  It  is  prohibited  for  the  reason  that  it  will  appear 
as  a  usurious  transaction  to  those  who  are  unfamiliar 
with  the  facts  of  the  case  (Rashi  to  Gemara  64b) . 


103 


Usury 

selas,  but  if  you  pay  me  monthly,  you  will 
have  to  pay  me  one  sela  per  month” — this  is 
permitted  (4).  If  one  sells  his  field  and  says 
to  the  grantee:  “  If  you  will  pay  me  for  it  now, 
you  can  have  it  for  one  thousand  zuz ;  but  if 
you  will  pay  me  for  it  at  harvest  time,  you 
will  have  the  field  for  twelve  hundred  zuz ” 
— this  is  prohibited  (5). 

(4)  .  Such  an  agreement  is  allowed  because  the  terms 
thereof  are  construed  to  import  that  the  actual  value 
of  the  court-yard  is  twelve  selas  per  annum,  but  that 
the  landlord  is  willing  to  reduce  the  rent  to  ten  selas  per 
annum,  if  the  tenant  will  pay  in  advance  for  the  entire 
year.  In  such  a  case  there  is  nothing  due  from  the  ten¬ 
ant  to  the  landlord  before  the  expiration  of  the  term  of 
the  lease,  because  rent  is  not  payable  in  advance  ( Ge - 
mara  65a).  When,  therefore,  the  tenant  elects  to  pay 
for  the  premises  one  sela  monthly,  the  increase  of  the 
two  selas  per  annum  cannot  be  considered  usury,  in 
that  the  lessor  permits  him  to  pay  the  ten  selas  in 
monthly  instalments.  For,  as  hereinbefore  stated, 
rent  is  not  payable  in  advance,  consequently  there 
is  no  debt  accruing,  and  the  question  of  usury  cannot 
be  raised  in  cases  where  there  is  no  debt. 

(5)  .  In  cases  of  bargain  and  sale,  however,  the  buyer, 
when  the  subject-matter  of  the  sale  is  delivered  to  him 
by  the  seller,  must  pay  the  purchase  money  agreed  up¬ 
on  immediately  upon  the  consummation  of  the  sale. 
If  he  does  not  pay  the  purchase  money  then,  such  sum 
becomes  a  debt.  In  the  case  cited  in  the  text,  the 


104 


Mishnah :  Baba  Meziah 


Mishnah  III.  One  sells  his  field  and,  receiv¬ 
ing  part-payment  therefor,  says  to  the  grantee : 
“  Whenever  you  desire,  bring  me  the  balance  of 
the  purchase-price  and  take  possession  of 
your  own” — this  transaction  is  prohibited  (6). 

grantor  sells  his  field  for  one  thousand  zuz  if  the  grantee 
will  pay  immediately  upon  the  delivery,  but  if  the 
grantee  does  not  pay  then,  he  will  have  to  pay  for  the 
field  twelve  hundred  zuz.  The  terms  of  such  an 
agreement  clearly  indicate  that  the  field  sold  is  of  the 
value  of  one  thousand  zuz  only,  and  that  the  two  hun¬ 
dred  extra  zuz  are  charged  to  the  grantee  by  the  grantor 
for  the  privilege  granted  to  him  in  that  he  does  not 
have  to  pay  the  entire  purchase-price  which  is  due 
immediately.  Such  an  agreement  is  therefore  pro¬ 
hibited  by  law  as  usurious  (7.  c.). 

(6) .  An  agreement  of  the  nature  mentioned  in  the 
text  is  forbidden  as  usurious  only  when  the  grantor 
consents  that  title  to  the  field  shall  vest  immediately 
in  the  grantee  upon  the  payment  of  the  deposit,  and 
that  the  grantor  shall  retain  such  property  as  security 
for  the  payment  of  the  balance  of  the  purchase- price. 
If  the  parties  agree  that  in  the  meantime  and  be¬ 
fore  such  balance  is  paid,  the  grantor  is  to  reap  the 
benefits  of  the  field,  it  is  then  prohibited  as  usurious 
because  it  amounts  in  fact  to  this,  that  the  grantee  per¬ 
mits  the  grantor  to  consume  the  products  of  the 
field,  which  according  to  the  terms  of  the  agreement 
belong  to  him,  because  the  grantor  does  not  insist 
upon  immediate  payment  of  the  balance  due. 

If,  on  the  other  hand,  they  agree  that,  in  the  mean- 


105 


Usury 

One  lends  money  to  his  neighbor  on  his  field, 
and  the  creditor  says  to  the  debtor :  ‘  ‘  If  you 
do  not  pay  me  within  three  years,  the  field 
is  mine.”  It  passes  to  him  (if  the  sum  due 
was  not  paid  before  the  expiration  of  the 
three  years)  (7).  And  thus  was  Boethos 

time  and  before  such  balance  is  paid,  the  grantee  is  to 
consume  the  fruit  produced  from  such  field,  it  is  like¬ 
wise  prohibited  as  usurious,  because  if  the  grantee  does 
not  pay  the  balance  of  the  purchase  price,  he  will  have 
received  such  fruit  as  usury  for  a  loan.  For  when  the 
grantee  rescinds  the  sale  after  having  given  part  pay¬ 
ment  to  the  grantor,  he  may  either  recover  the  sum  paid, 
or,  if  the  grantor  so  elects,  get  a  part  of  the  realty 
to  that  amount.  ( Vide  note  5  to  Chapter  vi,  infra). 

The  products  must,  therefore,  in  such  a  case  be  de¬ 
posited  with  a  third  party.  If  the  grantee  pays  the 
balance  due,  the  products  will  be  turned  over  to  him, 
and  if  he  does  not  pay,  they  will  be  turned  over  to  the 
grantor  ( Gemara  65b;  Alfasi,  Maimonides,  Laws  of 
Creditor  and  Debtor ,  Chapter  vi,  Law  6). 

(7).  This  rule  of  law  can  only  be  interpreted,  that 
the  agreement  between  the  parties  was  made  to  the 
effect  that  the  lender  should  take  title  to  the  field 
immediately  upon  effecting  the  loan,  but  that  he  gives 
the  borrower  three  years  time  within  which  to  pay, 
and  upon  such  payment  he  agrees  to  reconvey  the  field 
to  the  buyer.  Otherwise,  such  an  agreement  would  be 
invalid  and  not  binding  upon  the  parties  ( Gemara 
66b ;  Maimonides,  Laws  of  Sales ,  Chapter  xi,  Law  7). 


io6 


Mishnah :  Baba  Meziah 


ben  Zonin  accustomed  to  do  under  the  advice 
of  the  sages. 

It  is  a  well  established  principle  of  law  in  Jewish 
jurisprudence,  that  every  obligation  which  a  man 
obligates  himself  to  do  or  to  refrain  from  doing,  con¬ 
ditioned  upon  the  non-fulfillment  of  a  certain  promise 
made  by  him  to  the  promisor,  is  considered  an  insincere 
undertaking  and  is  therefore  not  binding  at  law.  E.  g. , 
A  borrows  money  from  B  to  be  paid  at  a  certain 
fixed  time,  and  in  addition  to  A’s  promise  of  payment 
he  says  to  the  creditor:  “If  I  do  not  pay  you  at  the 
time  specified  by  me,  then  you  shall  have  my  estate  in 
payment  of  your  loan.  ”  If  the  time  specified  elapses 
and  A  does  not  pay,  B  has  no  right,  by  virtue  of  said 
agreement,  to  take  A’s  estate,  because  the  provision 
embodied  in  the  agreement  relating  to  the  forfeiture 
of  A’s  estate  is  considered  in  law  a  mere  penalty 
(< asmaktha ,  insincere  promise) ,  and  is  therefore  invalid 
and  not  binding  upon  the  parties  {Gemara  66a-66b). 

Rashi  and  Tosafot  (to  l.  c.  66b),  sustaining  the 
dicta  in  the  Gemara  (pp.  73b,  74a  and  104b),  are  of  the 
opinion  that  an  agreement  of  the  nature  above  men¬ 
tioned  cannot  be  called  a  penalty  unless  there  is  an 
actual  forfeiture  of  property,  as  when  the  estate  to  be 
forfeited  by  the  borrower  is  of  much  greater  value  than 
the  sum  of  money  he  has  received  under  the  loan;  or 
where  the  thing  which  the  promisor  obligates  himself 
to  do  is  an  utter  impossibility,  otherwise  such  an 
obligation  is  not  considered  a  penalty  and  is  absolutely 
valid. 

The  weight  of  authority  is  not  in  favor  of  the  above 
mentioned  opinion.  It  is  well  settled  that  any  promise 


107 


Usury 

Mishnah  IV.  A  person  must  not  give  his 
merchandise  to  a  shopkeeper  (to  sell  at 
retail)  on  half  profits  (over  and  above  the 
wholesale  price  with  which  he  is  charged) ; 
nor  may  a  person  give  the  shopkeeper  money 
(wherewith  he  may  buy  merchandise  at 
wholesale  and  then  sell  at  retail)  and  divide 
the  profits  among  themselves,  unless  the 
latter  is  compensated  for  his  trouble  (8) ;  the 

conditioned  as  aforesaid  is  invalid,  and  it  is  immaterial 
whether  the  property  to  be  forfeited  is  of  greater  value 
than  the  amount  of  the  loan,  or  whether  or  not  the 
thing  the  promisor  obligates  himself  to  do  is  a  matter 
of  impossibility. 

All  jurists,  however,  concur  that  if  title  to  the 
property  is  to  vest  immediately  in  the  creditor  when 
the  loan  is  effected,  such  an  agreement  is  valid  even 
where  there  is  a  forfeiture  of  property  ( Gemara  66b). 
The  ruling  of  the  present  Mishnah  is,  therefore,  sus¬ 
tained  by  all  authorites. 

(8).  These  transactions  are  prohibited  by  law  as 
usurious  because  the  retailer  in  such  cases  assumes  the 
responsibility  of  a  borrower  to  bear  one-half  the  value 
of  the  merchandise  in  cases  of  loss,  while  for  the  other 
half  he  is  considered  a  bailee  ( Gemara  104b).  It  con¬ 
sequently  amounts  to  this,  that  because  the  owner  has 
loaned  one-half  of  his  merchandise  to  the  retailer,  the 
latter,  in  consideration  thereof,  undertakes  to  sell  the 
other  half  of  the  merchandise  belonging  to  the  former. 


io8 


Mishnah:  Baba  Meziah 


breeding  of  chickens  and  the  raising  of  calves 
or  foals  on  half  profit  are  forbidden,  unless  the 
one  who  accepts  them  is  compensated  for  his 
trouble  and  for  the  feed  (9).  Calves  and 
foals  may,  however,  be  accepted  (without 
appraising  them)  (10),  to  be  raised  until  they 

In  other  words,  the  owner  gets  the  benefit  of  the  re¬ 
tailer’s  labor  as  compensation  for  his  loan  (Rashi  to 
Gemara  68a). 

Such  a  transaction  is  permitted  either  when  the  re¬ 
tailer  is  compensated  for  his  work  ( Gemara  68b; 
Alfasi) ;  as  when  he  is  to  receive  profits  to  any  greater 
extent  than  he  has  to  bear  losses,  or  when  the  retailer 
invests  some  money  in  the  transacting  of  such  busi¬ 
ness,  in  the  nature  of  a  co-partnership  (Maimonides, 
Commentary  on  the  Mishnah). 

(9) .  A,  the  owner  of  an  animal,  may  not  stipulate 
with  B  that  the  latter  shall  raise  the  animal  and  the 
increase  in  value  occasioned  by  such  raising  shall  be 
divided  between  both  parties  in  the  proportion  they 
desire  to  stipulate.  (For  the  reason  of  this  rule  of  law, 
vide  note  ante). 

(10) .  The  retailer  expressly  agrees  not  to  assume 
any  greater  responsibility  than  that  of  an  ordinary 
bailee.  It  is  permitted,  because  this  does  not  then 
amount  to  a  loan  but  to  an  ordinary  bailment  for  hire 
for  which  the  bailee  is  to  receive  half  of  the  profits  as 
a  contingent  compensation.  The  rule  of  law,  stated 
in  the  text,  stands  for  the  further  principle,  that  when 
an  agreement  of  the  above  mentioned  nature  is  entered 


Usury  109 

attain  one- third  of  their  growth,  and  an  ass 
until  it  is  fit  for  carrying  burdens. 

Mishnah  V.  A  cow,  an  ass,  or  any  other 
animal  that  earns  its  keep  by  its  labor,  may 
be  appraised  at  half  profits  and  losses  (11). 
In  the  places  where  it  is  customary  to  divide 
the  offspring  immediately  (after  their  birth) ,  it 
should  be  done  so;  and  where  it  is  customary 
to  raise  them,  it  should  likewise  be  done  so. 
Rabban  Simeon  ben  Gamaliel  says:  “A  calf 
or  a  colt  may  be  appraised  with  its  mother  ’  ’ 
(12).  A  lessee  may  offer  higher  rent  for  the 
field  leased  by  him  in  consideration  of  a  loan 

into  between  two  parties  it  is  considered  a  co-partner¬ 
ship  agreement,  and  neither  of  the  parties  may  dissolve 
such  co-partnership  before  the  expiration  of  the  term 
mentioned  in  the  text  (Maimonides,  Commentary  on 
the  Mishnah ) . 

(11) .  This  rule  of  law  holds  true  only  when  the 
bailee  is  entitled  to  retain  for  himself  all  gains  real¬ 
ized  from  the  work  of  the  animal  (Rashi  to  Gemara 
69b),  for  then  he  receives  extra  compensation  for  his 
labor. 

(12) .  The  owner  does  not  have  to  pay  the  bailee 
for  the  maintenance  and  care  of  the  calf  or  colt.  The 
view  of  Rabban  Simeon  is  not  favored  by  weight 
of  authority  (Maimonides,  Commentary  on  the 
Mishnah) . 


110 


Mishnah:  Baba  Meziah 


for  improvements,  and  need  not  fear  the 
appearance  of  usury  (13). 

Mishnah  VI.  An  “  iron  sheep’’  may  not 
be  accepted  from  an  Israelite,  it  being  usurious 
(14);  but  it  may,  however,  be  accepted  from 
a  non-Israelite;  and  one  may  borrow  from  him 
and  lend  to  him  on  usury  (15).  This  is  also 

(13) .  A  leases  an  unmanured  field  to  B  for  ten 
kors  of  wheat  per  annum.  Thereafter  B  says  to  A: 
“Give  me  two  hundred  zuz  which  I  will  invest  in 
fertilizing  the  field,  and  in  consideration  thereof  I 
will  raise  the  rental  named  in  the  lease,  and  give 
you  twelve  kors  of  wheat  together  with  the  two  hun¬ 
dred  zuz  which  I  have  taken  from  you  ”  ( Gemara  69b). 
This  transaction  is  allowed  because  the  increase  of 
the  two  kors  of  wheat  is  not  considered  as  compen¬ 
sation  for  the  loan  of  the  hundred  zuz.  The  original 
agreement  entered  into  between  the  parties  has,  as 
a  matter  of  law,  been  terminated  by  this  new  agree¬ 
ment,  and  a  new  contract  has  been  entered  into 
between  the  parties  for  the  leasing  of  a  manured 
field  in  consideration  of  which  the  lessee  promises 
to  pay  two  hundred  zuz  plus  twelve  kors  of  wheat 
per  annum. 

(14) .  An  “iron  sheep ”  is  where  A  sells  his  flock  on 
payment  in  terms  to  B,  under  the  condition  that  the 
profits  realized  be  divided  between  the  parties  until 
payment  in  full  has  been  made,  and  that  B  should 
bear  all  losses  sustained. 

(15) .  The  Pentateuch  (Deut.  xxii,  21)  says:  “From 


Ill 


Usury 

allowed  to  be  done  to  a  proselyte  (who  has 
obligated  himself  not  to  worship  idols,  but 

an  alien  thou  mayest  take  interest;  but  from  thy 
brother  thou  mayest  not  take  interest.”  As  stated 
in  note  8  to  Chapter  II,  supra ,  the  reason  non- 
Israelites  are  in  certain  instances  excluded  from  enjoy¬ 
ing  the  benefits  of  the  Jewish  law  is  that  there  is 
a  want  of  mutuality.  Among  the  neighboring  nations 
of  the  Jews,  the  taking  of  interest  was  absolutely 
legitimate,  and  an  action  at  law  could  be  maintained 
by  the  lender  to  recover  the  money  lent  and  also  the 
interest  thereon  ( Gemara  62b). 

Jewish  jurists  have  followed  the  law  of  the  Penta¬ 
teuch,  permitting  a  Jew  to  take  interest  from  a  non- 
Jew,  but  they  have  likewise  made  it  legal  for  a  Jew  to 
give  interest  to  a  non- Jew;  otherwise  the  borrower  as 
well  as  the  lender  is  guilty  of  violating  the  command¬ 
ment  prohibiting  usury  (Mishnah  XI,  infra).  The 
reason  for  their  having  enacted  such  a  law  was  that 
they  desired  to  make  the  validity  of  taking  usury  from 
a  non-Israelite  reciprocal  and  mutual.  That  this  was 
the  reason  such  law  had  been  enacted  is  further  ob¬ 
vious  from  the  rule  of  law  laid  down  in  the  present 
Mishnah  that  usury  may  be  taken  from  a  proselyte. 
According  to  the  Talmudic  definition,  a  proselyte  is  one 
who  has  obligated  himself  not  to  worship  idols,  but  did 
not  obligate  himself  to  observe  all  the  Jewish  laws. 
But  had  he  undertaken  to  observe  all  the  laws  of  the 
Jews,  no  usury  could  then  be  taken  from  him  although 
he  may  not  be  a  Jew  in  the  true  sense  of  the  word,  for 
then  he  would  be  compelled  to  reciprocate  the  bene¬ 
fits  he  derives  from  such  laws. 


II  2 


Mishnah :  Baba  Meziah 


did  not  obligate  himself  to  observe  the  Jewish 
law).  An  Israelite  may  lend  (to  one  of  his 
race)  money  belonging  to  a  non-Israelite 
upon  usury,  provided  it  is  done  with  the 
knowledge  of  the  non-Israelite  (16). 

Mishnah  VII.  No  stipulation  may  be  made 
to  buy  crop  (to  be  delivered  at  some  future 
time)  before  the  market  price  is  known  (17); 

(16) .  Rab.Papa  ( Gemara  71b)  says  that  if  an  Is¬ 
raelite  has  in  his  possession  money  belonging  to  a 
non-Israelite,  he  is  not  allowed  to  lend  it  to  another 
Israelite  with  the  understanding  that  the  latter  shall 
pay  interest  to  the  non-Israelite,  even  when  this  is 
done  with  the  latter’s  consent.  When,  however,  the 
non-Israelite  personally  turns  over  the  money  to  the 
supposed  borrower,  it  is  permitted  even  when  this  is 
done  at  the  instigation  of  the  former  borrower.  His 
view  is  sustained  by  Maimonides,  Laws  of  Creditor  and 
Debtor,  Chapter  v,  Law  3,  and  by  the  greater  weight  of 
authority. 

(17) .  A  is  not  permitted  to  advance  money  to  B  in 
consideration  of  the  latter’s  promise  to  deliver  to  the 
former  a  certain  quantity  of  fruit  at  a  certain  price 
whenever  demanded  by  the  former,  before  the  market 
price  is  fixed.  This  is  prohibited  because  the  price 
for  the  fruit  stipulated  to  be  sold  may  advance,  and 
B,  by  virtue  of  his  agreement,  will  have  to  deliver  to 
A  the  quantity  of  fruit  agreed  upon.  A,  the  buyer, 
will  then  get  interest  for  his  money  which  was  with 
the  seller,  because  the  quantity  of  fruit  delivered 


Usury  1 13 

when,  however,  the  market  price  is  known,  an 
agreement  to  that  effect  may  be  made,  for 
although  the  vendor  has  no  crop  in  his  pos¬ 
session  as  yet,  others  have  (18).  If  the  vendor 

now  will  have  been  worth  more  than  the  money  ad¬ 
vanced  by  him. 

In  order  that  goods  may  be  the  subject  of  a  bar¬ 
gain  and  sale,  that  is,  of  a  present  sale  under  which 
title  passes  to  the  purchaser  at  once,  they  must  be  in 
existence  when  the  contract  is  made.  (View  of  Rab 
Nachman,  Gemara  66b).  When  the  market-price  of 
fruit  is  not  fixed,  although  it  may  be  obtained  else¬ 
where,  it  cannot  be  said  to  be  in  existence  in  as  far  as 
the  contracting  parties  are  concerned,  as  it  is  un¬ 
certain  whether  it  can  be  obtained  for  the  price  stipu¬ 
lated.  The  money,  therefore,  given  by  A  to  B  for 
future  deliveries  of  merchandise  of  which  he  is  not 
possessed,  is  considered  a  mere  loan  to  be  repaid  with 
a  certain  quantity  of  merchandise  at  a  certain  price 
whether  such  merchandise  will  depreciate  or  advance 
in  value. 

(18).  When,  however,  the  market  price  of  the  fruit 
to  be  delivered  in  the  future  is  fixed,  the  aforesaid  agree¬ 
ment  is  not  considered  usurious,  because  the  vendor, 
at  the  time  of  the  formation  of  the  agreement,  is  able 
to  obtain  fruit  elsewhere,  for  the  price  agreed  upon, 
with  the  money  he  obtained  from  the  buyer;  hence, 
the  subject-matter  of  the  sale  is,  in  contemplation  of 
law,  in  existence.  In  such  a  case,  therefore,  it  is  of  no 
moment  whether  the  vendor  is  actually  possessed  of 
the  subject-matter  of  the  sale  or  not.  An  agree- 


8 


1 14 


Mishnah:  Baba  Meziah 


was  first  in  the  harvest,  a  person  may  con¬ 
clude  a  bargain  with  him  for  the  grain  in  the 
stack;  for  grapes  in  the  basket  (in  which 
grapes  are  carried  from  the  vineyard  during 
vintage);  for  the  olives  in  the  vat  (where 
olives  are  packed  until  they  form  a  viscid 
mass,  although  the  market  price  is  not  yet 
known)  (19) ;  a  bargain  may  be  concluded  for 

ment  of  the  aforesaid  nature  is  not  obligatory  or  en- 
forcible  at  law,  as  the  law  requires  an  actual  change  of 
possession  to  make  a  binding  bargain  and  sale,  but  if 
the  parties  to  such  an  agreement  elect  to  abide  by  its 
terms  in  order  not  to  violate  the  moral  obligation  such 
an  agreement  creates  and  for  the  violation  of  which  a 
curse  is  imposed  (Chapter  IV,  Mishnah  II,  supra) ,  the 
agreement  is  valid. 

(19) .  When  a  thing  is  in  a  state  of  embryo,  but  has 
not  yet  reached  that  state  of  development  in  which  the 
vendor  is  obligated  to  deliver  the  same  to  the  vendee, 
it  may  be  the  subject-matter  of  a  present  sale.  (As 
to  the  validity  of  such  sale,  vide  note  ante).  Title  to 
the  subject-matter  of  the  sale  vests  in  the  vendee  im¬ 
mediately  upon  the  consummation  of  the  sale,  and  if 
the  price  thereafter  advances,  it  is  the  vendee’s  bene¬ 
fit,  for  it  was  his  merchandise  which  has  advanced  in 
value  ( Gemara  63a) . 

Rab  ( Gemara  74a)  is  of  the  opinion  that  if  the  goods, 
intended  by  the  parties  to  be  made  the  subject  of  a 
present  sale,  are  in  such  a  state  as  need  undergo  two 


Usury  1 15 

the  clayballs  of  a  potter ;  for  lime  in  the  kiln ; 
and  for  manure  (although  it  is  not  ready  for 
delivery)  at  any  time  in  the  year.  Rabbi 
Jose  says:  “No  agreement  to  buy  manure 
can  be  made,  unless  the  vendor  has  it  ready 
for  delivery”;  the  sages,  however,  allow  it 
(20).  One  may  stipulate  (upon  buying  mer- 

processes  in  order  that  they  become  suitable  for  de¬ 
livery,  they  are  considered  in  law  to  be  in  existence, 
and  the  sale  is  valid.  If,  however,  they  need  undergo 
three  processes,  they  are  not  considered  to  be  in  ex¬ 
istence,  and  consequently  cannot  be  made  the  subject- 
matter  of  a  present  sale.  (This  view  is  sustained  by 
Maimonides,  Laws  of  Creditor  and  Debtor,  Chapter  ix, 
Law  2).  This  is  obviously  well  established  in  Jewish 
jurisprudence,  that  things  which  are  not  in  existence  at 
all  have  no  potential  existence  in  contemplation  of  law. 
Hence,  things  which  are  the  natural  product  or  ex¬ 
pected  increase  of  something  already  belonging  to  the 
vendor,  as  the  offspring  of  animals,  and  future  crops  of 
land,  although  they  have  been  planted  before  the  con¬ 
tract  is  made  or  they  are  the  spontaneous  growth  of 
the  soil,  may  not  be  made  the  subject-matter  of  a 
present  sale. 

(20) .  The  anonymous  tanna  permits  a  stipulation  to 
be  made  for  buying  manure,  at  any  season  of  the  year 
even  when  the  vendor  has  no  manure  in  his  possession. 
Rabbi  Jose  is  of  the  opinion  that  such  an  agreement  is 
invalid  as  usurious,  unless  the  vendor  is  actually  pos¬ 
sessed  of  the  manure.  The  view  of  the  sages  is  that  an 


n6 


Mishnah:  Baba  Meziah 


chandise  to  be  delivered  thereafter  in  small 
quantities)  to  buy  according  to  the  price  at 
the  height  of  the  market  {i.  e.y  if  the  market 
price  will  decrease,  the  vendor  shall  have  to 
deliver  it  at  the  lowest  market  price)  (21). 
Rabbi  Judah  says:  “ Although  no  stipulation 
to  that  effect  is  made,  the  vendee  may  say 
to  the  vendor:  'Give  me  merchandise  at 
such  decreased  price,  or  else  return  me  the 
money  (I  advanced)/  ” 

Mishnah  VIII.  A  lessor  may  loan  his 
tenants-on-shares  wheat  for  sowing  purposes 
to  be  returned  in  kind,  but  not  wheat  for 
consumption  (22).  (This  rule  of  law  was 

agreement  to  buy  manure  cannot  be  distinguished  from 
any  ordinary  agreement.  They,  therefore,  maintain 
that  in  the  summer,  when  manure  can  be  obtained  else¬ 
where,  a  sale  of  the  aforesaid  nature  may  be  effected, 
but  not  in  the  winter  season  ( Gemara  74a). 

(21) .  The  anonymous  view  prevails  (Maimonides, 
Commentary  on  the  Mishnah) . 

(22) .  Pursuant  to  the  original  terms  of  the  lease  to 
farm-let,  the  lessee  was  to  furnish  seed  and  farm  the 
field,  and  in  consideration  of  such  letting,  the  lessor 
was  either  to  receive  a  certain  compensation  of  ready 
money  or  have  a  certain  interest  in  the  products  of  the 
field.  If  the  lessee  has  no  seed  and  fails  to  farm  the 
field,  the  lease  is  thereby  terminated;  the  lessor  has 


Usury  1 17 

laid  down)  because  Rabban  Gamaliel  was 
accustomed  to  loan  wheat  to  his  tenants-on- 
shares  for  sowing  purposes,  but  if  thereafter 
the  price  of  wheat  has  advanced  or  depreciated, 
he  always  took  wheat  from  them  at  the  lowest 
market  price.  It  is  to  point  out  that  Rabban 
Gamaliel’s  view  was  not  law,  but  that  he 
simply  desired  to  place  himself  under  greater 
restrictions. 

the  right  of  ousting  the  lessee,  and  the  latter  forfeits 
his  rights  obtained  under  the  lease  ( Gemara  74b).  If 
thereupon  the  lessor  agrees  to  furnish  the  necessary 
seed,  a  new  agreement  has  thereby  been  entered  into 
between  the  respective  parties,  whereby  it  was  agreed 
that  the  lessor  should  furnish  the  necessary  seed,  and 
that  he  should  deduct  the  measure  of  seed  from  the 
lessee’s  share  at  harvest  time  (Rashi  to  Gemara  74b). 

A  loan  of  wheat  to  be  returned  in  kind  at  some  time 
in  the  future  is  prohibited  (Mishnah  IX,  infra).  In 
the  case  cited  in  this  Mishnah,  however,  it  is  permitted 
because  the  wheat  which  the  lessor  is  to  receive  at 
harvest  time  from  the  lessee’s  share  is  not  considered  as 
the  payment  of  a  loan  of  wheat  made  by  him  to  the 
lessee.  It  is  a  right  which  has  accrued  to  him  by  vir¬ 
tue  of  an  express  condition  embodied  in  the  agree¬ 
ment  to  farm-let,  that  the  lessor  should  deduct 
the  seed  he  had  advanced  from  the  share  belonging 
to  the  lessee,  and  the  latter  should  have  so  much 
less  than  any  ordinary  lessee  who  does  furnish  seed. 


1 1 8 


Mishnah:  Baba  Meziah 


MishnahIX.  A  man  should  not  say  to  his 
neighbor:  "Lend  me  a  kor  of  wheat  and  I  will 
return  it  to  you  at  harvest  time";  but  he 
may  say  to  him:  "Lend  it  to  me  until  my  son 
comes  home,"  or  "until  I  find  the  key"  (23); 
Hillel,  however,  forbids  even  this.  And  thus 
was  Hillel  accustomed  to  say:  "A  woman  is 
not  allowed  to  loan  a  loaf  of  bread  to  her 
neighbor,  unless  it  is  stipulated  that  the  value 
thereof  shall  be  paid  (and  not  that  a  loaf  of  the 
same  weight  shall  be  returned),  lest  the  value 
of  wheat  may  rise  and  the  transaction  will 
turn  out  to  be  usurious"  (24). 

(23) .  When  the  borrower  has  no  wheat  in  his  pos¬ 
session,  he  may  not  effect  a  loan  of  a  certain  measure  of 
wheat  to  be  returned  in  kind  at  some  time  in  the  fu¬ 
ture,  because  the  price  of  wheat  may  advance  in  the 
meantime,  and  when  he  returns  wheat  of  the  same 
measure,  the  lender  will  get  usury  for  his  loan. 
When,  however,  the  borrower  does  have  wheat  in  his 
possession,  such  a  transaction  is  not  usurious.  It  is 
considered  as  a  mere  exchange  of  merchandise,  and 
title  to  the  wheat  in  the  borrower’s  possession  passes 
to  the  lender  immediately  upon  the  formation  of  the 
agreement  of  barter.  The  aforesaid  rule  of  law  is 
well  established. 

(24) .  Hillel’s  view  does  not  prevail  (Maimonides, 
Commentary  on  the  Mishnah). 


Usury  1 19 

Mishnah  X.  A  man  may  say  to  his  neigh¬ 
bor  :  *  ‘  Help  me  a  day  in  weeding,  and  in  return 
I  will  help  you  in  weeding  on  some  other  day; 
help  me  a  day  in  hoeing,  and  I  will  help  you 
some  other  day.”  But  he  may  not  say  to 
him:  “Help  me  a  day  in  weeding,  and  I  will 
help  you  a  day  in  hoeing,”  or  vice  versa  (25)- 
All  the  days  of  the  rainy  season  are  considered 
alike,  and  all  the  days  of  the  dry  season  are 
considered  alike  (26);  but  one  may  not  say 

(25) .  A  performs  a  day’s  labor  on  B’s  field,  and  he 
does  not  get  paid  for  the  labor  in  ready  money,  but 
B  in  consideration  thereof  promises  to  perform  a  day’s 
labor  of  similar  nature  on  A’s  field.  Such  an  agree¬ 
ment  is  permitted  although  it  is  probable  that  the  kind 
of  produce  A  will  have  to  weed,  or  the  kind  of  soil  B 
will  have  to  hoe  in  order  to  pay  A  for  his  labor,  will 
require  much  more  labor  and  skill,  and  consequently  a 
day’s  labor  performed  by  B  will  have  been  worth  more 
than  a  day’s  labor  performed  by  A.  Since  it  is  the 
same  kind  of  labor,  we  do  not  stop  to  consider  the 
difficulties  it  may  involve,  and  therefore  it  is  not  pro¬ 
hibited  as  a  usurious  transaction. 

When,  however,  the  parties  have  to  perform  vari¬ 
ous  sorts  of  labor,  it  is  prohibited  as  usurious  because 
the  kind  of  work  B  will  have  to  perform  may  be  of 
greater  value  than  the  work  performed  by  A. 

(26) .  A  day’s  work  did  not  consist  of  a  certain  fixed 
amount  of  hours,  but  was  generally  work  done  from 


120 


Mishnah :  Baba  Meziah 


to  his  neighbor:  “Help  me  a  day  in  hoeing 
in  the  rainy  season,  and  I  will  help  you  a  day 
in  hoeing  in  the  dry  season”  (27).  Rabban 
Gamaliel  says:  “  There  is  a  kind  of  usury 
which  may  be  termed  advanced,  and  another 
kind  which  may  be  termed  postpaid;  e.  g.y 
one  intends  to  borrow  money  from  his  neigh¬ 
bor,  and  he  sends  him  a  gift  saying,  ‘  This  is 
sent  to  you  because  you  will  lend  me  some 
money  ’ — this  is  usury  in  advance ;  if  one  has 
borrowed  money  from  his  neighbor,  and  when 
he  pays  the  loan,  he  sends  a  gift  to  the  lender 
saying,  'This  is  sent  to  you  because  your 
money  was  idle  in  my  hands’ — -this  is  post¬ 
sunrise  to  sunset.  In  the  case  mentioned  in  the  text, 
it  is  likely  that  the  day  on  which  the  promisor  will 
have  to  perform  his  work  may  be  much  longer  than 
the  day  on  which  the  work  was  performed  by  the 
promisee,  yet  it  is  not  taken  into  consideration  since 
the  days  are  of  the  same  season. 

(27).  It  is  not  permitted  in  this  instance  because  the 
days  in  the  dry  season  are  much  longer  than  in  the 
rainy  season.  The  promisee  will  consequently  obtain 
more  value  in  consideration  of  his  agreement  to  wait 
for  his  wages  due  now.  In  all  these  cases  it  is  pro¬ 
hibited  because  it  is  considered  as  a  payment  of  a 
loan. 


121 


Usury 

paid  usury.”  Rabbi  Simeon  says  that  there 
is  also  a  kind  of  usury  which  may  consist  of 
mere  words,  as  when  the  debtor  says  to  his 
creditor:  “I  inform  you  that  such  and  such  a 
person  has  arrived  from  such  and  such  a  place  ” 
(28). 

Mishnah  XI.  The  following  persons  trans¬ 
gress  the  negative  commandments  (relating 
to  the  taking  of  usury):  the  lender,  the  bor¬ 
rower,  the  surety,  and  the  witnesses;  and  the 
sages  include  also  the  scribe.  The  above 
named  violate  the  following  commandments: 
“  Thy  money  shalt  thou  not  give  him  upon 
usury  ”  (Lev.  xxv,  37) ;  “  Thou  shalt  not  take 
of  him  any  usury  ”  (/.  c.  36) ;  “  Thou  shalt  not 
be  to  him  as  a  lender  of  money”  (Ex.  xxii, 
24) ;  “  Thou  shalt  not  lay  upon  him  any  usury” 
(/.  c.);  and  “  Thou  shalt  not  put  a  stumbling 
block  before  the  blind;  but  thou  shalt  be 
afraid  of  thy  God:  I  am  the  Lord”  (Lev.  xix, 
14). 

(28).  This  is  forbidden  only  when  such  information 
is  given  either  by  reason  of  a  past  loan,  or  in  consider¬ 
ation  of  a  future  loan  contemplated  to  be  made,  but  no 
such  information  would  have  been  given  otherwise. 


CHAPTER  VI 


CONTRACTS  OF  HIRING— LIABILITY  OF 
PLEDGEES— REMOVAL  OF  BAILMENT 

BY  BAILEE 

Mishnah  I.  If  one  engages  artisans  and 
they  deceive  one  another,  they  have  nothing 
but  mere  resentment  against  each  other  (i). 

(i).  There  is  a  diversity  of  opinion  in  the  Gemara 
as  to  the  true  interpretation  of  the  facts  alluded  to  in 
the  present  Mishnah. 

The  Gemara  76a  interprets  the  facts  to  mean  that 
the  controversy  has  arisen  between  the  employer  and 
the  employees  when  the  contract  of  employment  had 
been  effected  through  an  agent  of  the  employer, 
and  explains  the  law  in  such  cases  to  be  this :  When  A 
appoints  B  as  his  agent  for  the  purpose  of  procuring 
employees  at  the  rate  of  four  zuzim  per  day,  and  the 
latter  obtains  employees  to  work  at  the  rate  of  three 
zuzim  per  day,  the  employees  are  entitled  only  to  the 
rate  of  wages  agreed  upon  by  them.  They  cannot 
recover  the  fourth  zuz  which  the  employer  was  origi¬ 
nally  willing  to  pay  either  from  the  principal  or  his 
agent. 


122 


123 


Contracts  of  Hiring 

If  one  hires  an  ass-driver  or  a  wagoner  to 
bring  litter  carriers  or  pipers  to  a  wedding  or  a 
funeral ;  or  if  one  hires  day  laborers  to  take  out 
flax  from  its  steeping,  or  if  he  hires  them  to 

If  on  the  other  hand  A  authorized  B  to  procure  em¬ 
ployees  at  the  rate  of  three  zuzim  per  day,  and  the 
latter  employed  workmen  to  perform  work  for 
four  zuzim  per  day,  such  employees  can  obtain  a 
recovery  of  four  zuzim  from  B  if  he  did  not  dis¬ 
close  the  principal  when  he  had  entered  into  the 
contract  of  employment.  In  the  last  named  case, 
the  employees  have  no  remedy  against  the  princi¬ 
pal,  because  the  agent,  having  exceeded  the  scope  of 
the  authority  he  was  clothed  with  by  the  principal, 
thereby  terminated  his  agency,  and  consequently  his 
acts  cannot  bind  the  principal  (Alfasi).  If  B  dis¬ 
closed  the  principal  and  made  him  a  party  to  the 
agreement,  the  employees  can  recover  from  A  only  the 
quantum  meruit  on  the  principles  of  quasi  contracts, 
because  there  was  no  contractual  relation  at  all  be¬ 
tween  A  and  the  employees  as  A’s  agent  did  not  act 
within  the  scope  of  his  authority.  A  must,  there¬ 
fore,  pay  the  employees  at  the  rate  of  four  zuzim  per 
day  if  such  is  the  reasonable  value  of  the  services  they 
have  rendered. 

The  Gemara  76a  interprets  the  facts  to  mean  that 
the  contract  of  employment  was  entered  into  by  the 
employer  in  person,  and  explains  the  law  in  such  a 
case  to  be  this:  When  A  employs  workmen  to  per¬ 
form  certain  work  at  a  certain  fixed  price  per  day,  and 
either  party  to  the  agreement  retracts,  before  the  work 


124 


Mishnah:  Baba  Meziah 


perform  work  on  materials  of  a  perishable 
nature,  and  the  latter  retract,  the  employer 
may  either  hire  other  men  at  the  expense  of 
the  workmen  or  deceive  them,  if  there  are 
no  other  workmen  to  be  procured  (for  the 
price  agreed  upon)  (2). 

Mishnah  II.  If  one  hires  mechanics  (to 
perform  certain  work)  and  they  retract,  they 
are  at  a  disadvantage;  if  the  employer  re- 

was  commenced  by  the  employees,  they  have  no  legal 
remedy  against  each  other.  When,  however,  the 
employees  are  unable  to  procure  employment  else¬ 
where,  A  must  then  pay  them  for  the  entire  day’s 
wages  ( Tosafot  to  Gemara  76b).  In  such  cases  the 
damages  are  ascertained  by  making  inquiries  as  to  how 
much  less  a  laborer  would  be  willing  to  take  per  day 
when  required  to  perform  no  work  at  all,  than  when 
he  has  to  perform  his  usual  labor  ( Gemara  76b). 

(2).  The  employer  may  either  hire  laborers  at  a 
higher  rate  than  the  one  agreed  upon,  and  charge  such 
increase  to  the  employees,  or  he  may  promise  the  em¬ 
ployees  to  raise  their  wages  at  the  rate  by  them  re¬ 
quested,  and  upon  the  completion  of  the  work  pay 
them  only  in  accordance  with  the  price  originally 
agreed  upon  in  the  agreement  ( Gemara  76b).  Such  new 
promise  is  not  enforcible  at  law,  because  it  is  supported 
by  no  consideration  as  the  employees  were  already 
obligated  to  perform  the  work  for  the  sum  specified  in 
the  agreement. 


125 


Contracts  of  Hiring 

tracts,  he  is  at  a  disadvantage  (3).  Whoso¬ 
ever  alters  the  terms  of  the  agreement  (4), 
or  whosoever  recedes  (a  contract)  is  at  a 
disadvantage  (5). 

(3) .  A  hires  B  to  perform  certain  work  at  a  stip¬ 
ulated  price,  say  ten  shekels,  and  B  after  performing 
one-half  of  the  work  retracts.  If  A  thereupon  pro¬ 
cures  other  workmen  to  complete  the  work  for  seven 
shekels,  he  then  has  to  pay  B  only  three  shekels  and 
not  half  of  the  price  stipulated.  If  on  the  other  hand 
A  procures  workmen  to  complete  the  work  for  three 
shekels,  he  has  to  pay  B  five  shekels  only,  half  of  the 
stipulated  price.  B  cannot  claim  that  since  A  ob¬ 
tained  men  to  complete  the  work  for  three  shekels,  he 
is  entitled  to  ten  shekels  minus  the  three  shekels  paid 
by  A  for  completing  the  work. 

If  A  retracts  after  half  performance  of  the  work  by 
B,  and  thereafter  he  obtains  men  to  complete  the  work 
for  three  shekels,  he  must  then  pay  seven  shekels  to  B. 
If  he  obtains  workmen  to  complete  the  work  for  seven 
shekels,  he  must  pay  five  shekels  to  A  (Rashi  to 
Gemara  75b). 

(4)  .  A  gives  wool  to  B  to  have  it  dyed  red,  and  B 
dyes  it  black,  if  the  wool  by  reason  of  such  dyeing  was 
improved  to  the  extent  of  one  shekel,  and  the  expense 
incurred  by  B  is  half  a  shekel,  A  has  to  pay  half 
a  shekel  only.  If  on  the  other  hand  the  expendi¬ 
ture  was  only  half  a  shekel  and  the  improvement  was  a 
shekel,  A  pays  only  half  a  shekel  ( Baba  Kama  100b) . 

(5) .  A  sells  his  field  to  B  for  one  thousand  zuz,  B 
giving  two  hundred  zuz  as  security  to  A,  and  thereafter 


126 


Mishnah:  Baba  Meziah 


Mishnah  III.  If  one  hires  an  ass  for  the 
purpose  of  driving  it  on  a  hill,  and  he  drives 
it  in  a  valley;  or  if  he  hires  it  for  driving  it  in 
a  valley  and  he  drives  on  a  hill,  and  the  ass 
dies,  the  hirer  is  liable  even  when  both  ways 
are  of  equal  distance  ( e .  g.,  ten  miles)  (6). 
If  a  man  hires  an  ass  and  (during  such  hiring 

A  retracts.  B  has  then  a  choice:  he  may  either  sue  to 
recover  the  two  hundred  zuz ,  or  have  an  action  in 
specific  performance  to  recover  of  the  realty  to  the 
amount  of  the  security.  If  B  retracts,  A  has  a  choice : 
he  may  either  return  the  two  hundred  zuz  to  B  or 
compel  him  to  take  a  part  of  the  property,  stipu¬ 
lated  to  be  sold,  to  the  value  of  the  security  ( Gemara 
77b)-_ 

This,  however,  is  true  only  in  a  case  where  it  was 
stipulated  by  the  parties  that  title  to  the  property 
should  vest  in  the  vendee  upon  the  payment  of  the 
balance  of  eight  hundred  shekels.  For,  if  it  was  ex¬ 
pressly  stipulated  that  title  should  pass  immediately 
upon  the  giving  of  the  part-payment,  the  sale  would 
then  be  considered  consummated  and  neither  party 
could  retract.  In  such  a  case,  A  would  have  the  only 
remedy  of  instituting  an  action  against  B  to  recover 
the  balance  of  the  purchase  price  which  is  considered 
a  mere  debt,  due  from  B  to  A  (/.  c.). 

(6) .  This  tanna  is  of  the  opinion  that  if  the  hirer 
does  not  act  in  accordance  with  terms  of  the  agreement 
of  hiring,  he  is  liable  in  every  case  because  he  is  guilty 
of  conversion. 


127 


Contracts  of  Hiring 

period)  it  gets  blind  or  is  seized  for  public 
service,  the  owner  may  say  to  the  hirer: 
*  ‘  Here  is  your  property  before  you  (take  it  in 
the  condition  in  which  it  is).”  If,  however, 
the  ass  dies  or  is  injured,  the  owner  must 
furnish  the  hirer  with  another  ass  (7).  If 

(7).  A  hires  an  animal  from  B  to  perform  certain 
labor  therewith,  and  A  does  not  designate  any  particu¬ 
lar  animal  with  which  he  is  to  perform  such  labor. 
Such  an  agreement  is  construed  by  the  courts  to  im¬ 
port  that  B  has  obligated  himself  to  furnish  A  with 
animal  service  for  the  length  of  time  stipulated. 
If,  therefore,  B  thereupon  delivers  an  animal  to  A,  al¬ 
though  it  is  appropriate  for  the  purpose  of  performing 
the  work  which  the  agreement  calls  for,  he  does  not  by 
such  an  act  do  everything  on  his  part  he  is  required  to 
do  under  the  terms  of  the  agreement,  because  he  must 
furnish  A  with  animal  service  for  the  time  stipulated. 
When,  through  no  fault  of  A,  the  animal  becomes 
utterly  disabled  from  performing  any  labor,  the  own¬ 
er  is  bound  to  furnish  him  with  another  animal  ( Ge - 
mar  a  79a).  If  B  fails  to  furnish  A  with  another  animal, 
the  latter  is  under  no  obligation  to  pay  for  the  part  of 
the  work  already  performed  by  him  (Maimonides, 
Commentary  on  the  Mishnah) .  If  A  has  paid  B  in  ad¬ 
vance  for  the  services  to  be  rendered,  he  can  re¬ 
cover  the  same,  because  the  contract  is  one  entirety 
and  part  performance  thereof  on  the  part  of  B  does 
not  create  any  obligation  upon  the  part  of  A. 

When,  however,  A  designates  the  animal  he  desires 


128 


Mishnah:  Baba  Meziah 


one  hires  an  ass  to  drive  it  on  a  hill,  and  he  has 
driven  it  in  a  valley  instead  and  the  ass  has 
slipped,  he  is  not  liable  (because  this  could 
surely  occur  on  a  hill);  if,  however,  it  was 
overheated,  he  is  liable  (because  this  could 
not  happen  on  the  hill  where  the  air  is  much 
purer  than  in  the  valley).  If  the  agreement 
was  to  drive  it  in  a  valley,  and  he  drives  on  a 
hill  (the  law  is  then  just  the  reverse):  if  it 
slipped,  he  is  liable;  if  it  was  overheated  he  is 
not  liable;  if,  however,  the  overheating  was 

to  hire,  and  thereafter  it  becomes  disabled  from  per¬ 
forming  any  work,  B  is  not  bound  to  provide  the 
former  with  another  animal.  In  this  case,  B,  by  de¬ 
livering  to  the  hirer  the  animal  designated,  has  per¬ 
formed  everything  necessary  on  his  part  under  the 
terms  of  the  agreement  ( Gemara  79a;  Maimonides, 
Laws  of  Hiring ,  Chapter  v,  Law  2).  In  this  case,  the 
hirer  acquires  a  lien  on  the  animal  so  hired.  He  may, 
therefore,  sell  the  dead  animal,  and  with  the  money 
realized  therefrom  he  may  either  hire  another  animal 
or  purchase  one  in  order  to  complete  his  journey  or 
services  (/.  c.). 

In  case  no  particular  animal  is  designated  by  the 
hirer  and  the  animal  does  not  become  utterly  disabled, 
as  when  it  gets  blind  or  lame  and  the  work  to  be  done 
under  the  agreement  is  possible  of  being  performed  but 
with  some  difficulty,  the  owner  is  not  bound  to  provide 
the  hirer  with  another  animal. 


Contracts  of  Hiring  129 

caused  by  reason  of  the  ascent  to  the  hill,  he 
is  liable  (8). 

Mishnah  IV.  If  one  hires  a  cow  (with  the 
implements  belonging  to  it)  for  the  purpose 
of  ploughing  therewith  on  a  hill  and  he  has 
ploughed  in  a  valley,  he  is  not  liable  in  case 
the  plough-share  was  broken.  If  he  hires  it 
to  plough  therewith  in  a  valley  and  he  has 
ploughed  on  a  hill,  he  is  liable  in  case  the 
plough-share  was  broken  (9).  If  he  hires  it 
for  the  purpose  of  threshing  pulse  and  he 
has  threshed  grain  (and  the  animal  has 
slipped  by  reason  of  which  it  was  injured), 
he  is  not  liable ;  if  to  thresh  grain  and  he  has 
threshed  pulse  (and  it  slipped),  he  is  liable 

(8)  .  This  tanna  is  of  the  opinion  that  even  in  cases 
where  the  hirer  does  not  act  according  to  the  terms  of 
his  agreement  he  is  not  liable,  unless  it  is  evident  that 
the  incident  which  has  caused  the  injuries  to  the  ani¬ 
mal  could  not  have  occurred  if  the  hirer  would  have 
complied,  and  acted  in  accordance,  with  the  terms  of 
the  contract  of  hiring  entered  into  between  the  parties. 
His  view  is  the  prevailing  law. 

(9) .  The  soil  on  a  hill  is  generally  much  more 
rocky  than  in  a  valley,  and  therefore  the  plough¬ 
share  is  more  apt  of  being  broken  than  in  a 
valley. 


130  Mishnah  :  Baba  Meziah 

(because  pulse  is  more  slippery  than  grain) 

(io). 

Mishnah  V.  If  one  hires  an  ass  for  carrying 
a  certain  weight  of  wheat,  and  he  has  carried 
the  same  weight  of  barley,  and  the  animal 
sustained  some  injury  (by  reason  of  the  bur¬ 
den  it  carried),  he  is  liable;  if  for  carrying 
grain  and  he  has  carried  straw  of  the  same 
weight,  he  is  liable  because  an  increase  of 
volume  is  as  hard  for  the  animal  as  an  increase 
of  weight.  If  he  hires  it  to  bring  a  lethekh 
(half  a  kor)  of  wheat  and  he  has  brought  a 
lethekh  of  barley,  he  is  not  liable,  but  if  he 
increased  the  measure  (although  it  was  equal 
in  weight  to  the  measure  of  wheat),  he  is 
liable.  With  how  much  shall  the  hirer  in¬ 
crease  the  load,  in  order  to  be  held  liable? 
Symmachos  in  the  name  of  Rabbi  Meir  says: 
“One  seah  for  a  camel  and  three  cabim  for 
an  ass.” 

(io).  The  view  of  this  tanna  is  in  accord  with  the 
opinion  of  the  tanna  in  the  previous  Mishnah  (note 
8,  supra),  that  even  when  the  hirer  does  not  act  accord¬ 
ing  to  the  terms  of  the  agreement  he  is  not  liable,  un¬ 
less  it  is  obvious  that  the  accident  could  not  happen  if 
he  acted  within  the  scope  of  his  authority. 


Contracts  of  Hiring  131 

Mishnah  VI.  All  artisans  are  considered 
as  bailees  for  hire  (11).  If,  however,  they 
say  (to  the  owner  upon  the  completion  of  the 
work  performed  by  them):  “Take  your  arti¬ 
cle  and  pay  us  thereafter  for  the  work  by 
us  performed,”  they  are  then  considered  as 
gratuitous  bailees  (12). 

If  one  says  to  his  neighbor:  “Guard  this 
article  for  me,  and  I  will  reciprocate  such 
service  to  you,”  the  depositary  is  in  such  a 
case  a  bailee  for  hire.  If  one  says  to  another: 
“Guard  this  article  for  me,”  and  in  reply 

thereto  such  person  says:  “Place  it  in  my 
presence,”  he  is  in  such  a  case  considered  a 

gratuitous  bailee  (13). 

(n).  An  artisan  is  considered  a  bailee  for  hire,  be¬ 
cause  he  acquires  a  lien  on  the  article  to  the  value  of 
his  services  rendered.  By  virtue  of  such  lien,  he  may 
retain  the  article  until  his  claim  for  the  work  performed 
thereon  is  satisfied  by  the  owner  ( Gemara  80b) . 

(12)  .  When,  however,  the  artisan  does  not  desire  to 
avail  himself  of  the  privilege  granted  to  him  by  law, 
and  expressly  notifies  the  owner  that  he  does  not  care 
to  enforce  such  lien,  he  is  then  considered  a  gratuitous 
bailee  only. 

(13) .  A  says  to  B:  “ Guard  this  article  for  me,” 
and  B  in  reply  thereto  says:  “Place  it  in  my  pres- 


132 


Mishnah :  Baba  Meziah 


Mishnah  VII.  If  one  lends  money  and 
takes  a  pledge  from  the  creditor  to  secure  the 
payment  of  such  loan,  he  is  considered  a  bailee 
for  hire  (in  taking  care  of  the  pledge) .  Rabbi 
Judah  says:  “If  he  lends  money  (and  takes 
a  pledge) ,  he  is  a  gratuitous  bailee ;  if  he  loans 
fruit,  he  is  a  bailee  for  hire”  (14).  Abba 

ence,  ”  such  an  answer  is  considered  in  law  as  an 
acceptance  of  A’s  offer.  There  consequently  was  a 
meeting  of  the  minds  of  the  parties  to  make  it  a  bind¬ 
ing  agreement  for  a  gratuitous  bailment,  although  B 
did  not  expressly  say  that  he  would  take  care  of 
the  article.  When,  however,  B  replies:  “  Place  it 
before  you,”  or  “ Place  it,”  but  does  not  say  “In  my 
presence,”  this  does  not  constitute  an  acceptance  of 
A’s  offer  ( Gemara  81b ;  sustained  by  Alfasi  and  Maimo- 
nides,  Laws  of  Hiring ,  Chapter  11,  Law  8). 

(14).  Rabbi  Judah  holds  that  when  a  man  lends 
money  to  some  one  else  and  takes  a  pledge  to  secure  the 
payment  of  such  loan,  he  is  in  no  way  benefited  by  the 
transaction  and  consequently  cannot  be  held  liable  as 
a  bailee  for  hire. 

In  the  case  of  an  artisan  (Mishnah  VI,  supra),  he 
is  considered  a  bailee  for  hire  by  virtue  of  the  lien  he 
acquires,  because  he  is  benefited  by  the  transaction  in 
that  an  opportunity  was  given  him  by  the  owner  of 
the  article  to  render  services  and  earn  some  money, 
in  priority  to  other  artisans  ( Tosafot  to  Gemara  80b). 

When,  however,  A  loans  fruit  to  B  on  a  pledge,  with 
the  understanding  that  the  latter  shall  return  fruit  to 


Removal  of  Bailment  by  Bailee  133 

Saul  says:  “  A  pledgee  may  let  out  a  pledge  of 
a  poor  person,  and  the  money  thus  realized 
shall  be  deducted  from  the  sum  due,  because 
this  is  equivalent  to  the  restoration  of  a  lost 
article  to  its  owner”  (15). 

Mishnah  VIII.  If  a  bailee  carries  a  cask 

the  value  loaned,  some  time  in  the  future,  A  in  such  a 
case  is  held  liable  as  a  bailee  for  hire.  The  considera¬ 
tion  received  by  A  in  this  case  is  that  he  is  relieved  in 
the  meantime  from  taking  care  of  the  fruit  and  storing 
it  so  that  it  might  not  become  decayed  in  course  of  time. 

The  view  of  Rabbi  Judah  is  not  sustained  by 
authority.  The  prevailing  opinion  is  that  a  pledgee  is 
held  liable  as  a  bailee  for  hire  in  every  instance.  The 
reason  for  such  liability,  as  stated  in  the  Talmud  and 
sustained  by  Alfasi  and  Rashi,  is  that  every  person  is 
bound  by  the  Mosaic  Law  to  lend  money  to  a  needy 
person.  When  one  is  actually  engaged  in  performing 
a  religious  duty,  he  is  exonerated  from  performing  an¬ 
other  one  at  one  and  the  same  time.  For  the  privilege, 
therefore,  that  the  pledgee  has,  in  that  he  is  exonerated 
from  giving  alms  to  the  poor  while  he  is  actually  en¬ 
gaged  in  taking  care  of  the  pledge,  he  is  considered  a 
bailee  for  hire. 

(15).  The  opinion  of  Abba  Saul  is  sustained  by 
weight  of  authority.  This,  however,  holds  true  only 
when  the  damage  done  to  the  pledge  by  reason  of  such 
letting  does  not  exceed  the  profits  realized  ( Gemara 
82b;  Alfasi  and  Maimonides,  Laws  of  Creditor  and 
Debtor ,  Chapter  111,  Law  8). 


134 


Mishnah :  Baba  Meziah 


from  one  place  to  another  and  breaks  it, 
whether  he  is  a  gratuitous  bailee  or  a  bailee 
for  hire,  he  must  take  an  oath  (to  the  effect 
that  he  was  free  from  negligence)  and  is 
exempt  from  liability  (16).  Said  Rabbi  Eli- 
ezer:  “I  have  also  heard  that  in  both  cases 
the  bailee  has  to  take  an  oath  and  be  exempt 
from  liability,  but  I  was  wondering  how  such 
a  decision  could  be  upheld  ”  (17). 

(16) .  It  cannot  be  called  gross  negligence  when  a 
bailee,  while  removing  the  bailment  from  one  place  to 
another,  stumbles  over  a  certain  object  by  reason  of 
which  stumbling  he  falls  and  breaks  such  bailment. 
Neither  can  such  an  occurrence  be  termed  compulsion 
or  overpowering  force,  but  is  analogous  to  that  degree 
of  negligence  which  ordinarily  causes  theft  and  loss . 
(  Vide  note  1 2  to  Chapter  VII,  infra) .  The  anonymous 
opinion  is  that  a  bailee  for  hire,  as  well  as  a  gratuitous 
bailee,  has  to  take  an  oath  to  the  effect  that  he  was  not 
guilty  of  gross  negligence  in  carrying  such  bailment, 
and  that  this  particular  stumbling  was  occasioned  by 
reason  of  the  ordinary  cause  which  generally  occasions 
other  incidents  of  stumbling  and  is  then  exempt  from 
liability.  This  tanna  follows  the  opinion  of  the  sages 
(j Baba  Kama  28b),  and  is  sustained  by  Alfasi  and 
Maimonides.  (For  the  reason  why  a  bailee  for  hire 
may,  in  this  particular  instance,  be  exempt  from  lia¬ 
bility  with  an  oath,  see  note  17,  infra). 

(17) .  The  anonymous  view  of  this  Mishnah  cannot 


Removal  of  Bailment  by  Bailee  135 

be  upheld  on  strict  principles  of  bailment.  The  law  is 
well  established  that  a  bailee  for  hire  is  liable  in  cases 
where  he  is  guilty  of  an  ordinary  neglect  of  duty.  He 
should,  therefore,  be  held  liable  in  cases  of  stumbling, 
even  when  it  was  caused  by  an  ordinary  degree  of 
negligence.  This  view,  however,  can  be  sustained  on 
the  ground  that  if  a  bailee  for  hire  would  be  held  lia¬ 
ble  in  cases  of  stumbling,  he  would  never  take  the 
risk  to  remove  a  bailment  even  when  absolutely 
necessary.  In  this  particular  instance,  therefore,  the 
Rabbis  have  modified  the  Law  of  Moses,  and  have 
enacted  that  a  bailee  for  hire  should  be  exempt  from 
liability  by  taking  an  oath  that  he  was  free  from  gross 
negligence  ( [Gemara  83a ;  sustained  by  Alfasi  and 
Maimonides,  Laws  of  Hiring,  Chapter  11,  Law  3). 


CHAPTER  VII 


HIRING  OP  LABORERS— THE  FOUR  BAIL¬ 
MENTS— CONDITIONS 

Mishnah  I.  If  a  man  engages  workmen 
and  asks  them  to  work  in  early  morning  or  in 
late  evening,  at  a  place  where  early  morning 
work  or  late  evening  work  is  not  customary, 
he  cannot  compel  them  (to  do  so)  (i);  where 
it  is  customary  to  furnish  them  with  food,  he 

( i ) .  When  one  hires  laborers  and  does  not  expressly 
state  in  the  agreement  of  hiring  how  many  hours  per 
day  they  will  have  to  work,  it  is  then  implied  in  law 
that  the  parties  to  the  agreement  were  willing  to  abide 
by  the  custom  of  the  locality.  The  employer  cannot 
compel  the  workmen  to  work  longer  hours  than  is  cus¬ 
tomary  in  that  locality,  even  when  he  has  agreed  to 
pay  them  more  than  the  rate  of  wages  generally  paid 
to  such  laborers.  It  is  implied  in  law  that  he  has 
agreed  to  give  them  such  an  increase  with  the  view  of 
having  them  perform  better  work,  and  not  for  the 
purpose  of  having  them  work  longer  hours  than  is 
customary  ( Gemara  83a;  Maimonides,  Laws  of  Hiring , 
Chapter  ix,  Law  1). 


136 


137 


Hiring  of  Laborers 

must  do  so ;  if  it  is  customary  to  provide  them 
with  sweets,  he  must  do  so — all  depends  upon 
the  custom  of  the  province. 

It  is  related  of  Rabbi  Johanan  ben  Mattai 
that  he  said  to  his  son:  “Go  out  and  engage 
workmen  for  us.”  The  latter  did  so,  and 
agreed  with  the  employees  that  they  should 
be  provided  with  food.  When  he  came  back 
to  his  father,  the  latter  said:  “My  son,  even 
if  you  should  provide  them  with  a  banquet 
equal  to  that  of  Solomon’s  during  his  reign, 
you  would  not  be  certain  that  you  have  dis¬ 
charged  your  duty,  as  they  are  the  children 
of  Abraham,  Isaac  and  Jacob.  Before  they 
begin  to  work,  go  and  say  to  them:  ‘  (You  are 
to  work)  on  the  express  condition  that  I  should 
have  to  provide  you  with  bread  and  pulse 
only.’  ”  said  Rabban  Simeon  ben  Gamaliel: 
“He  did  not  have  to  make  such  a  condition, 
because  (in  the  absence  of  an  express  provi¬ 
sion  to  the  contrary)  everything  must  be  done 
(by  the  employer)  according  to  the  custom  of 
the  province.” 

Mishnah  II.  The  following  (laborers)  are 
entitled,  according  to  the  Law  of  Moses,  to 


Mishnah :  Baba  Meziah 


138 

eat  (from  the  fruit  they  are  handling):  He 
who  works  on  what  is  affixed  to  the  ground, 
when  the  finishing  touch  to  the  work  is  given 
{i.  e.}  when  severing  it  from  the  soil) ;  and  he 
who  works  on  what  is  detached  from  the 
ground,  when  the  finishing  touch  to  the  work 
has  not  been  given  (2),  and  is  the  product  of 
the  soil  (3).  The  following  (laborers)  may  not 
partake:  He  who  works  on  what  is  affixed  to 
the  ground,  when  the  finishing  touch  to  the 
work  is  not  given;  and  he  who  works  on  what 
is  detached  from  the  soil,  when  the  finishing 
touch  to  the  work  is  given,  or  when  it  is  not 
the  product  of  the  soil. 

Mishnah  III.  If  the  workman  performs 
work  with  his  hands  and  not  with  his  feet, 
with  his  feet  and  not  with  his  hands,  or  even 

(2) .  When  products  of  the  soil  are  in  that  state  of 
development  in  which  the  tithe  for  the  Levite  or  the 
heave-offering  for  the  Priest  must  be  separated,  no 
one  is  allowed  to  partake  therefrom,  unless  the  tithe 
or  the  heave-offering  has  either  actually  been  given 
to  the  Levite  or  the  Priest  or  has  at  least  been 
separated  from  the  mass  and  set  aside  for  him. 

(3) .  But  those  engaged  in  milking  or  cheese-mak¬ 
ing,  for  instance,  do  not  eat  of  the  produce  they  are 
handling. 


139 


Hiring  of  Laborers 

when  he  works  with  his  shoulder  only,  he  is 
entitled  to  eat  (from  the  fruit  he  is  handling). 
Rabbi  Jose  ben  Rabbi  Judah  says :  “A  laborer 
is  entitled  to  eat  only  when  he  employs  both 
his  hands  and  his  feet  in  the  work”  (4). 

Mishnah  IV.  He  whose  work  is  among  figs 
is  not  permitted  to  eat  grapes;  among  grapes, 
is  not  allowed  to  eat  figs.  He  may,  however, 
refrain  from  eating  until  he  reaches  the  place 
where  the  finest  fruit  is  found.  In  all  cases 
it  is  said  that  a  laborer  may  eat  only  when  he 
is  actually  engaged  with  his  labor,  but  in 
order  to  restore  a  lost  article  to  its  owner 
(i.  e.,  to  save  the  time  of  the  employer),  it  was 
enacted  that  he  may  eat  only  while  going 
from  one  furrow  to  the  other,  or  while  return¬ 
ing  from  the  wine-press.  An  ass  is  entitled 
to  eat  (from  the  burden  it  carries)  while  being 
unladen  (5). 

(4)  .  The  law  in  such  cases  is  that  the  labor  of  a  work¬ 
man  entitles  him  to  partake  of  the  fruit  with  which 
he  is  engaged,  and  it  is  absolutely  immaterial  with 
which  member  of  his  body  he  performs  such  work. 
The  view  of  Rabbi  Jose,  therefore,  does  not  prevail 
(Maimonides,  Commentary  on  the  Mishnah). 

(5) .  As  explained  in  the  Gemara  92a,  the  interpre- 


140 


Mishnah :  Baba  Meziah 


Mishnah  V.  The  laborer  may  eat  cucum¬ 
bers  or  dates  even  to  the  value  of  a  denar . 
Rabbi  Eleazar  ben  Hisma  says:  “A  laborer 
must  not  eat  fruit  the  value  of  which  exceeds 
his  wages.”  The  sages  allow  even  this; 
nevertheless,  we  teach  a  man  not  to  be  greedy 
so  that  the  doors  of  mankind  should  not  be 
closed  against  him  (6). 

Mishnah  VI.  One  may  stipulate  on  his  own 
behalf,  on  behalf  of  his  son  or  daughter  who  is 
of  age,  on  behalf  of  his  man-servant  or  maid¬ 
servant  who  is  of  age,  and  on  behalf  of  his 
wife,  because  they  have  understanding  (7). 
He  may  not  stipulate  on  behalf  of  his  minor 

tation  of  this  rule  of  law  is  that  an  ass  is  entitled  to  eat 
from  the  burden  it  carries  until  it  is  being  unladen. 

(6) .  The  view  of  the  sages  is  that  a  laborer  is  le¬ 
gally  entitled  to  eat  more  than  his  wages  amount  to, 
but  that  he  is  ethically  enjoined  from  doing  so.  Their 
opinion  is  the  prevailing  law  (Maimonides,  Laws  of 
Hiring ,  Chapter  xn,  Law  11). 

(7) .  A  laborer  may  stipulate  either  on  his  own  be¬ 
half  or  on  behalf  of  those  enumerated  herein,  that  he 
or  they  shall  not  eat  of  the  fruit  they  are  entitled 
to  according  to  law,  and  take  money  instead,  for  the 
reason  that  they  have  understanding  and  are  therefore 
capable  of  waiving  such  right. 


Hiring  of  Laborers  141 

son  or  daughter,  of  his  minor  man-servant  or 
maid-servant,  nor  of  his  cattle,  because  these 
have  no  understanding  (8). 

Mishnah  VII.  If  one  engages  workmen  to 
work  on  fruit  of  a  plantation  in  its  fourth 
year  (9),  they  are  not  permitted  to  eat  there¬ 
from.  If,  however,  he  did  not  notify  them 
(of  the  case),  he  must  redeem  the  fruit  in 
order  to  enable  them  to  eat  therefrom  (10). 
If  a  man’s  fig-cakes  were  broken  (and  he  hired 
laborers  to  re-press  them),  or  his  sealed  casks 

(8)  .  Those  enumerated  herein  have  no  understand¬ 
ing  to  waive  the  right  given  them  to  partake  of  the 
fruit  with  which  they  are  engaged,  and  therefore 
no  stipulation  to  that  effect  may  be  made  for  them 
(Maimonides,  Commentary  on  the  Mishnah). 

(9) .  Vide  note  20,  to  Chapter  IV,  supra. 

(10) .  Unless  agreed  upon  to  the  contrary,  the  labor¬ 
ers  as  a  matter  of  law  are  entitled  to  partake  from  the 
fruit  with  which  they  are  engaged.  When,  therefore, 
one  hires  laborers,  there  is  an  implied  provision  that 
they  shall  partake  from  the  fruit  they  are  handling, 
and  such  a  right  forms  a  part  of  the  consideration  they 
are  to  receive  for  their  labor.  If,  for  some  reason  or 
another,  such  fruit  may  not  be  consumed  and  the 
employer  has  not  notified  the  laborers  of  the  exist¬ 
ing  prohibition,  the  employer  is  bound,  by  virtue  of 
the  agreement,  to  remedy  such  prohibition  if  it  is 
remediable. 


142 


Mishnah:  Baba  Meziah 


were  opened  (and  he  engaged  workmen  to 
have  them  sealed  again),  they  are  not  per¬ 
mitted  to  partake  therefrom  {vide  note  2, 
supra) ;  but  if  he  did  not  notify  them,  he  must 
separate  the  tithe  for  the  Levite,  and  thus 
enable  them  to  eat  therefrom. 

Those  that  watch  crops  are  permitted  to  eat 
(from  the  crops  they  watch)  by  the  custom  of 
the  land,  but  not  according  to  the  Law  of  the 
Scripture  (11). 

Mishnah  VIII.  There  are  four  kinds  of 
bailees:  A  gratuitous  bailee,  a  borrower,  a 
bailee  for  hire,  and  a  hirer.  A  gratuitous 
bailee  takes  an  oath  in  every  case ;  a  borrower 
must  pay  in  every  case;  and  a  bailee  for  hire 
and  a  hirer  have  to  take  an  oath  concerning 
an  injured  or  confiscated  animal,  but  they 
have  to  pay  in  cases  of  theft  or  loss  (12). 

(11) .  According  to  the  Law  of  the  Scripture,  only 
such  laborers  as  directly  perform  some  labor  on  the 
produce  are  entitled  to  partake  therefrom,  but  a 
watchman  who  performs  no  work  on  the  produce  is  not 
entitled  to  partake. 

(12) .  In  order  to  thoroughly  comprehend  the  vari¬ 
ous  liabilities  of  bailees,  the  three  main  classes,  into 
which  the  Jewish  law  divides  occurrences  with  respect 


The  Four  Bailments 


143 


Mishnah  IX.  (The  attack  of)  one  wolf 
does  not  constitute  an  overpowering  force, 
but  of  two  wolves  it  does.  Rabbi  Judah 
maintains  that  at  the  time  when  wolves  are 

to  their  nature  or  degree  of  negligence,  must  be  under¬ 
stood  at  the  outset. 

Occurrences  are  divided  into  transgression ,  theft  and 
loss ,  and  compulsion.  Transgression ,  or  gross  negli¬ 
gence %  is  where  the  happening  of  the  occurrence  was 
the  result  of  such  a  degree  of  negligence  on  the  part  of 
the  bailee  as  would  in  law  be  tantamount  to  an  inten¬ 
tional  destruction  of  the  bailment.  Theft  and  loss ,  or 
ordinary  negligence,  is  where  the  occurrence  has  re¬ 
sulted  from  an  ordinary  degree  of  negligence  on  the 
part  of  the  bailee,  generally  accompanying  cases  of 
theft  and  loss,  in  that  he  has  not  taken  ordinary  care. 
Compulsion,  or  overpowering  force,  is  an  occurrence 
which  was  the  result  of  such  a  force  or  power  as  could 
not  have  been  avoided  or  resisted  had  even  the  greatest 
degree  of  care  or  precaution  been  taken  by  the  bailee. 

There  are  four  kinds  of  bailments:  1.  Depositum 
gratis;  2.  Depositum  compensatis;  3.  Locatio  rei;  and 
4.  Commodatum. 

1 .  Depositum  gratis,  or  a  gratuitous  bailment,  is  a 
bailment  of  goods  to  be  kept  by  the  bailee  for  the  bail¬ 
or,  without  recompense,  and  to  be  returned  either  on 
demand  or  at  a  certain  fixed  time.  Such  a  bailee  is  to 
keep  the  goods  bailed  with  reasonable  care,  and  is 
liable  only  for  gross  neglect,  or  the  want  of  care  which 
every  prudent  sensible  man  would,  under  the  circum¬ 
stances,  take  of  his  own  property.  In  other  words,  he 


144 


Mishnah :  Baba  Meziah 


coming  in  hordes,  (the  attack  of)  even  one  wolf 
constitutes  an  overpowering  force;  (his  view 
does  not  prevail;  Maimonides,  Commentary 
on  the  Mishnah) .  (The  attack  of)  two  dogs  is 

is  liable  only  for  such  a  degree  of  negligence  as  would  in 
law  be  classed  under  transgression. 

In  case  the  bailee  is  unable  to  return  the  bailment  to 
the  bailor,  there  is  a  prima  facie  case  of  neglect  of  duty 
on  the  part  of  the  bailee.  If  the  bailee  claims  that  the 
bailment  was  either  stolen  or  lost,  or  that  any  other 
occurrence,  which  partakes  the  character  of  theft  and 
loss ,  has  caused  the  destruction  of  the  bailment,  and 
that  it  was  not  caused  by  his  gross  neglect,  he  must 
then  take  an  oath  to  substantiate  his  defense.  The 
oath  rebuts  the  prima  facie  case,  and  no  more  evidence 
need  be  produced  by  the  bailee  in  order  to  be  exempt 
from  liability. 

2.  Depositum  compensatis ,  or  a  bailment  for  hire,  is 
where  the  bailee  is  to  keep  the  goods  for  the  bailor, 
receiving  compensation  therefor,  and  restore  the  same 
either  on  demand  or  at  a  certain  fixed  time.  He  is 
liable  in  cases  of  ordinary  neglect ,  such  as  resemble 
theft  and  loss,  and  is  not  liable  in  cases  of  compulsion  or 
overpowering  force.  When  he  is  unable  to  return  the 
bailment  to  the  bailor  and  his  defense  is  that  it  was 
destroyed  as  a  result  of  an  overpowering  force,  he  must 
take  an  oath  to  substantiate  his  defense. 

3.  Locatio  rei ,  or  letting  of  a  thing,  is  where  a  man, 
for  a  certain  compensation,  gains  the  temporary  use 
of  a  certain  article.  His  liability  is  exactly  analogous 
to  that  of  a  bailee  for  hire. 


The  Four  Bailments 


i45 


not  considered  an  overpowering  force.  Jad- 
dua  the  Babylonian  in  the  name  of  Rabbi 
Meir  says:  “  (The  attack  of)  two  dogs,  coming 
from  the  same  direction,  does  not  constitute 
an  overpowering  force ;  but  when  coming  from  • 
two  different  directions  it  does;”  (not  law; 
Maimonides,  Commentary  on  the  Mishnah ). 
(The  attack  of  an  armed)  robber,  a  lion,  a 

4.  Commodatum ,  or  a  loan,  is  the  bailment  of  an 
article  for  a  certain  time,  to  be  used  by  the  borrower 
without  paying  for  its  use.  Here,  because  the  bailee 
is  the  only  party  benefited  by  the  transaction,  he  is 
held  to  the  highest  degree  of  care  and  is  liable  in  every 
instance. 

The  only  case  where  a  borrower  is  not  liable  is  either 
where  the  owner  of  the  bailment  was  employed  by  the 
borrower  when  the  loan  was  effected  (Chapter  VIII, 
Mishnah  I,  infra),  or  where  the  destruction  of  the  bail¬ 
ment  has  resulted  from  the  very  kind  of  work  for  which 
it  had  been  borrowed,  provided  it  had  not  been  tasked 
beyond  its  strength  ( Gemara  96b) . 

It  is,  however,  to  be  understood  that  when  it  is  said 
in  such  cases  that  the  bailee’s  oath  suffices  to  exempt 
him  from  liability,  it  is  only  when  it  is  evident  that 
no  witnesses  can  be  procured  by  him  to  corroborate 
his  defense.  But  when  it  appears  that  witnesses  can 
be  procured  by  him,  he  cannot  establish  his  defense 
with  an  oath  ( Gemara  83a;  Alfasi;  Maimonides,  Laws 
of  Hiring ,  Chapter  in,  Law  2). 


10 


146  Mishnah  :  Baba  Meziah 

bear,  a  tiger,  a  panther  or  a  serpent  is  consid¬ 
ered  an  overpowering  force.  This,  however, 
is  true  only  when  it  comes  unexpectedly  of  its 
own  accord,  but  if  the  bailee  takes  his  flock  to 
a  place  where  there  are  hordes  of  noxious 
beasts  or  robbers,  it  is  then  not  considered  an 
overpowering  force.  A  natural  death  con¬ 
stitutes  an  overpowering  force,  but  not  if 
death  is  caused  by  ill-treatment  (starvation). 
If  the  beast  has  climbed  up  to  the  top  of  a  peak 
and  has  fallen  down,  which  fall  has  resulted 
in  its  death,  this  is  considered  an  overpowering 
force;  but  if  the  bailee  has  led  it  up  to  the 
top  of  a  peak  and  it  has  fallen  down,  as  a 
result  of  which  fall  it  has  died,  such  an  oc¬ 
currence  is  not  considered  an  overpowering 
force. 

Mishnah  X.  A  gratuitous  bailee  may  make 
a  condition  (in  his  agreement  of  bailment) 
that  he  shall  be  exempt  from  taking  the  oath 
(of  exoneration,  when  he  claims  that  the  bail¬ 
ment  was  either  stolen  or  lost);  a  borrower 
may  make  a  condition  that  he  shall  be  exempt 
from  payment ;  and  a  bailee  for  hire  and  a  hirer 
may  make  a  condition  that  they  shall  be 


Conditions 


147 

exempt  from  payment  and  also  from  taking 
the  oath. 

Mishnah  XI.  If  one  makes  a  stipulation, 
the  terms  of  which  are  contrary  to  that  which 
is  written  in  the  Pentateuch,  his  stipulation 
is  void  (13).  Every  condition  which  is  pre¬ 
ceded  by  the  act  (which  the  promisor  obligates 
himself  to  do  by  virtue  of  his  promise),  is 
void  (14).  Every  act,  which  is  possible  of 

(13) .  The  law  regarding  the  illegality  of  contracts 
when  they  are  contrary  to  the  Law  of  Moses  is,  that 
if  the  effect  of  the  agreement  is  to  deprive  one  of  the 
contracting  parties  from  a  pecuniary  interest  or  bene¬ 
fit  given  to  him  by  law,  it  is  valid  and  obligatory. 
When  a  contract  involves  a  violation  of  a  moral,  re¬ 
ligious  or  criminal  law  it  is  void  and  therefore  not 
obligatory.  (View  of  Rabbi  Judah,  Kidushin  19b). 
The  anonymous  decision  of  Mishnah  X  is  therefore  the 
prevailing  law.  The  ruling  in  this  Mishnah  follows 
the  view  of  Rabbi  Meir  (/.  c.)  and  does  not  prevail. 

(14) .  The  language  of  this  Mishnah  is  somewhat 
ambiguous,  and  consequently  there  arose  a  diversity  of 
opinion  as  to  the  true  interpretation  thereof. 

Rashi  and  many  other  jurists  have  explained  this 
Mishnah  to  mean,  that  every  condition  which  the 
promisor,  upon  making  his  promise,  desires  to  impose 
upon  the  promisee,  and  upon  the  performance  of  which 
the  fulfillment  of  his  promise  is  to  depend,  must  be 
made  by  him  precedent  to  the  making  of  his  promise. 


148  Mishnah :  Baba  Meziah 

being  performed  is  valid  when  embodied 

If  the  condition  is  made  subsequent  to  the  making  of 
his  promise  or  at  the  conclusion  of  the  agreement,  it 
is  then  invalid  and  consequently  not  obligatory  upon 
the  promisee. 

According  to  this  view,  a  condition  is  precedent 
when  it  is  made  by  the  promisor  prior  to  the  making 
of  his  promise.  Such  a  condition  is  then  valid  and 
binding  so  that  the  promisor  is  not  bound  to  fulfill  his 
promise  before  the  promisee  has  performed  the  con¬ 
dition.  A  condition  is  subsequent  when  it  is  made  by 
the  promisor  after  the  making  of  his  promise.  Such 
a  condition  is  then  invalid,  and  the  promisor  must 
fulfill  his  promise  whether  the  promisee  performs  the 
condition  or  not. 

The  above  named  commentators  have  elicited  the 
aforesaid  distinction  of  conditions  from  the  Scripture. 
When  the  two  and  a  half  tribes  were  desirous  of  set¬ 
tling  in  the  land  conquered  by  Moses  on  the  east  of 
the  Jordan,  Moses,  in  imposing  a  condition  to  their 
taking  possession  thereof,  said  to  them:  “If  you  will 
pass  armed  with  your  brethren  across  the  Jordan  and 
help  them  fight  with  the  nations  who  inhabit  the 
west  of  the  Jordan,  then  you  shall  have  this  land.  ” 
They,  therefore,  explain  this  Mishnah  to  mean,  that 
every  condition,  in  order  to  be  valid  as  such,  must 
be  made  by  the  promisor  prior  to  the  making  of  his 
promise,  as  had  been  made  by  Moses. 

This  distinction  of  conditions,  although  seemingly 
arbitrary,  is  supported  by  good  reason.  A  contract 
is  created  by  a  meeting  of  the  minds  of  the  parties 
thereto,  and  if  at  some  moment  their  minds  meet,  the 


Conditions 


149 

in  an  agreement  as  a  condition,  if  such 

contract  is  thereby  made  and  cannot  thereafter  be  de¬ 
feated  by  the  will  of  only  one  of  the  contracting  parties. 
When,  therefore,  one  makes  a  promise,  supported  by  a 
valid  consideration  moving  from  the  promisee,  the 
agreement  is  at  that  point  considered  consummated. 
If  there  is  no  condition  made  by  the  promisor  prior  to 
the  making  of  his  promise,  it  is  presumed  in  law  that 
his  intention  was  to  make  it  absolute  and  uncondi¬ 
tional.  At  that  moment,  when  the  promise  was  con¬ 
cluded  by  the  promisor,  the  minds  of  the  parties  have 
met,  and  consequently  there  was  a  contractual  re¬ 
lation.  If  the  promisor,  immediately  after  the  mak¬ 
ing  of  his  promise,  makes  a  condition  upon  which  the 
fulfillment  of  his  promise  is  to  depend,  such  a  condition 
is  considered  a  mere  after- thought  and  is  consequently 
invalid. 

Maimonides  in  his  Commentary  on  the  Mishnah  and 
several  other  commentators  are  of  the  opinion  that 
the  manner  or  mode  in  which  the  promisor  expresses 
his  promise  is  absolutely  of  no  moment.  They  main¬ 
tain  that  the  present  Mishnah,  in  drawing  a  distinction 
between  conditions  precedent  and  subsequent,  means 
this:  If  the  promisor  actually  performs  the  act  he 
obligates  himself  to  do  by  virtue  of  his  promise,  be¬ 
fore  he  has  made  the  condition  he  desired  to  impose, 
such  a  condition  is  then  termed  subsequent  and  is  of  no 
effect.  When,  however,  the  promisor  does  not  actu¬ 
ally  perform  the  act  he  obligates  himself  to  do  under 
his  promise,  but  is  in  abeyance  until  the  promisee  will 
perform  the  condition,  such  a  condition  is  then  termed 
precedent ,  and  is  consequently  valid  and  binding  upon 


150  Mishnah:  Baba  Meziah 

i 

an  act  was  made  a  condition  precedent 
(15)- 

the  promisee.  In  other  words,  according  to  the  latter 
interpretation,  a  condition  is  precedent  and  conse¬ 
quently  binding  upon  the  promisee  when  it  is  made 
for  the  purpose  of  preventing  a  right  or  an  obliga¬ 
tion  from  being  created.  A  condition  is  subsequent 
and  consequently  not  binding,  when  it  is  made  for  the 
purpose  of  defeating  a  right  or  an  obligation  which  has 
already  come  into  existence. 

It  is  to  be  understood  that  when  it  is  said  that  a 
condition  is  invalid,  it  is  meant  thereby  that  the  promi¬ 
sor  must  fulfill  his  promise  whether  the  condition  is 
performed  or  not. 

(15).  A  condition  in  order  to  be  valid  must  consist 
of  an  act  which  is  possible  of  being  performed  by  the 
promisee.  If  the  promisor  names  an  act  as  a  condition 
which  is  absolutely  impossible  of  being  performed,  it  is 
of  no  effect,  because  it  is  presumed  that  the  promisor 
was  insincere  in  imposing  such  a  condition  (Gemara 
94a;  Alfasi  and  Maimonides,  Commentary  on  the 
Mishnah). 


CHAPTER  VIII 


BORROWING  OF  ANIMALS— EVIDENCE- 
OWNERSHIP  IN  TREES  AND  NOT 
IN  THE  SOIL— LANDLORD 
AND  TENANT 

Mishnah  I.  One  borrows  a  cow,  and  at 
the  same  time  engages  to  employ  its  owner 
either  gratis  or  for  hire ;  or  he  first  engages  the 
owner  and  subsequently  borrows  the  cow. 
If  the  cow  dies  while  in  his  custody,  he  is  not 
liable,  as  it  is  written  (Ex.  xxn,  13):  “If 
the  owner  be  with  him  (the  borrower), 
he  shall  not  pay.”  If,  however,  he  first 
borrows  the  cow  and  thereafter  he  employs 
its  owner  either  gratis  or  for  hire,  and  the 
cow  dies,  he  is  liable,  as  it  is  written  (/.  c.  14): 
“  If  the  owner  be  not  with  him,  he  shall  surely 
pay”  (1). 

(1).  The  present  Mishnah  explains  the  law  of  the 
Scripture  (/.  c.  13-14)  to  be  this,  that,  in  order  that 


152 


Mishnah :  Baba  Meziah 


Mishnah  II.  One  borrows  a  cow  for  half  a 
day  and  hires  her  for  half  a  day ;  or  he  borrows 
her  for  one  day  and  hires  her  for  another  day 
(and  she  dies);  or  he  borrows  one  cow  and 
hires  another  and  one  of  them  dies.  The 
bailor  says:  “ It  is  the  borrowed  cow  that  died 
(and  consequently  the  bailee  as  a  borrower  is 
liable  in  cases  of  death) ;  she  died  on  the  day 
she  was  loaned,  she  died  at  the  time  of  the 
day  she  was  loaned.”  The  bailee  says:  “I 
do  not  know  (when  she  died) ;  ”  he  is  liable  (2). 

the  borrower  should  be  exempt  from  liability,  it  is 
essential  that  the  bailor  should  be  in  his  employ  at 
the  time  the  loan  is  effected ;  but  that  it  is  not  at  all 
necessary  that  the  bailor  should  be  employed  by  the 
borrower  at  the  time  the  accident,  causing  the  de¬ 
struction  of  the  bailment,  occurs  ( Gemara  95b ;  Alfasi ; 
Maimonides,  Laws  of  Loan  and  Bailment ,  Chapter  n, 
Law  1.) 

(2).  It  is  a  well  established  rule  of  law  in  Jewish 
jurisprudence  that  when  A  makes  a  positive  assertion 
that  B  is  indebted  to  him  in  a  certain  sum  of  money, 
and  B  says  that  he  is  uncertain  whether  he  is  indebted 
or  not,  then  A  is  not  entitled  to  a  recovery  of  his  claim 
if  he  is  unable  to  produce  any  evidence  in  support 
of  his  complaint.  (View  of  Rabbi  Nachman  and 
Rabbi  Johanan,  Kethuboth  12b;  Maimonides,  Laws  of 
Pleading ,  Chapter  I,  Law  7). 

The  rule  of  law  laid  down  in  the  present  Mishnah 


Evidence 


i53 


If  on  the  other  hand,  the  hirer  says:  “It  is  the 
hired  cow  that  died  (and  consequently  as  a 
bailee  for  hire  he  is  not  liable  in  cases  of  death) ; 
she  died  on  the  day  when  I  used  her  for  hire ; 

is  apparently  in  conflict  with  the  above  named  rule 
of  law,  for  it  says  that  the  bailor  is  entitled  to  a 
recovery  upon  his  mere  statement,  if  the  claim  made 
by  him  is  certain  and  the  defense  made  by  the  bailee 
is  uncertain.  The  Gemara  97b~98a,  however,  recon¬ 
ciles  the  ruling  of  this  Mishnah  with  the  above 
mentioned  rule  of  law  on  the  theory  stated  here¬ 
inafter. 

This  is  likewise  a  well  established  rule  of  law  that 
when  A  claims  one  hundred  shekels  from  B,  and  B 
admits  a  part  of  such  liability,  say  fifty  shekels,  he 
must  then  pay  the  fifty  shekels  which  he  has  admitted, 
and  take  an  oath  that  he  does  not  owe  the  balance 
claimed  by  A.  ( Vide  note  13  to  Chapter  IV,  supra.) 
When,  however,  B,  by  the  nature  of  his  defense,  has 
incapacitated  himself  from  taking  an  oath  to  the 
effect  that  he  does  not  owe  the  balance  of  the  debt 
claimed  by  A,  as  for  instance  when  he  admits  fifty 
shekels  and  as  to  the  other  fifty  he  is  uncertain  whether 
he  owes  it  or  not,  he  must  then  pay  the  entire  sum 
claimed  by  A  ( Gemara  98a). 

The  Gemara  (/.  c .)  says  that  in  the  first  two  cases 
mentioned  in  the  text,  the  facts  are  as  follows:  The 
bailor  says  to  the  bailee:  “  I  have  given  you  two  cows, 
both  of  which  were  loaned  by  you  for  one  half  of  the 
day  and  hired  for  the  other  half  of  the  day ;  ”  or  he  says : 
“Both  of  them  were  loaned  by  you  for  one  day  and 


154 


Mishnah :  Baba  Meziah 


she  died  at  the  time  of  the  day  when  I  used 
her  for  hire/’  and  the  bailor  says:  “I  do  not 
know,  ’  ’  the  former  is  not  liable  (3) .  If  the  bailor 
claims  that  the  loaned  cow  died,  and  the 
bailee  claims  that  the  hired  one  died,  the 
latter  must  take  an  oath  that  the  hired  one  died 

hired  for  the  following  day,  and  both  of  them  have 
died  at  the  time  or  on  the  day  they  have  been  loaned.” 
The  borrower  on  the  other  hand  says :  “I  admit  that 
one  of  these  cows  has  died  at  the  time  or  on  the  day 
she  was  loaned,  but  as  to  the  other  cow,  I  do  not  know 
when  she  has  died.”  In  the  third  case  cited  in  the 
text,  the  bailor  says:  “I  have  given  you  three  cows, 
two  of  which  were  loaned  and  the  third  one  was  hired 
by  you,  and  the  two  cows  which  were  loaned  have 
died.”  The  bailee  in  reply  says:  “I  admit  that  one 
of  the  two  dead  cows  is  one  of  the  two  I  loaned  from 
you,  but  as  to  the  other  dead  cow,  I  do  not  know 
whether  it  is  the  one  that  was  loaned  or  the  one  that 
was  hired.  ”  As  the  bailee  admits  a  part  of  the  liability, 
which  admission  casts  upon  him  the  burden  of  taking 
an  oath  to  the  effect  that  the  other  cow  which  has  died 
was  the  hired  one,  and  as  he  is  unable  to  take  an  oath 
to  that  effect  because  he  admits  that  he  does  not  know 
it,  he  must  pay  for  it. 

(3).  The  bailee  is  not  liable  in  this  case,  because 
the  bailor,  who  is  the  party  plaintiff,  by  making  a 
doubtful  assertion  of  his  claim,  admits  that  he  is 
unable  to  prove  his  case  and  fix  any  liability  upon  the 
bailee. 


Evidence 


155 

(and  is  exempt  from  liability)  (4).  If  the 

(4).  The  Gemara  98b  says  that  it  fails  to  see  the 
theory  upon  which  this  rule  of  law  can  be  sustained,  as 
there  is  nothing  to  appear  from  the  facts,  as  stated  in 
the  text,  to  warrant  the  imposing  of  an  oath  upon  the 
bailee.  For,  it  is  a  well  established  rule  of  law  that, 
when  both  parties  to  an  action  make  positive  asser¬ 
tions  in  support  of  the  claim  or  of  the  denial  thereof, 
the  defendant  does  not  then  have  to  take  an  oath  to 
substantiate  his  defense,  if  the  claim  made  by  the 
plaintiff  is  not  supported  by  a  presumption.  For 
instance,  when  A  says  to  B :  “You  are  indebted  to  me 
in  the  sum  of  one  hundred  shekels,”  and  B  says:  “I 
owe  you  nothing,”  it  is  then  for  the  plaintiff  to  come 
forward  with  evidence  to  prove  his  claim,  and  not  for 
the  defendant  to  prove  his  defense. 

This  is  likewise  well  established,  that  the  burden 
of  an  oath  is  cast  upon  the  defendant  when  he  admits 
a  part  of  the  liability,  only  when  the  admission  is  made 
for  a  part  of  the  very  claim  made  by  the  plaintiff.  No 
oath  can  be  imposed  upon  him  when  he  admits  a 
liability  which  differs  entirely  from  the  one  the 
plaintiff  seeks  to  establish.  When,  therefore,  A 
claims  that  B  owes  him  ten  measures  of  wheat,  and 
B  admits  that  he  owes  him  five  measures  of  barley, 
this  does  not  constitute  a  part  admission  which  should 
cast  upon  the  defendant  the  burden  of  taking  an  oath, 
because  such  an  admission  does  not  raise  the  presump¬ 
tion  of  the  existence  of  the  claim  made  by  A  ( Shebuoth 
38b). 

In  the  case  as  presented  in  the  text,  where  the 
bailor  claims  that  the  loaned  cow  has  died  and  the 


Mishnah :  Baba  Meziah 


156 

bailor  says:  “  I  do  not  know,”  and  the  bailee 
likewise  says:  “I  do  not  know,”  then  both 

bailee  claims  that  the  hired  one  has  died,  the  latter 
thereby  admits  a  liability  which  necessitates  his  taking 
an  oath  to  the  effect  that  the  cow  has  died  a  natural 
death.  Nevertheless  such  an  admission  does  not  con¬ 
stitute  a  part  of  the  claim  made  by  the  bailor,  because 
the  liability  admitted  by  the  bailee  is  entirely  dis¬ 
tinct  from  the  liability  sought  to  be  established  by  the 
bailor:  the  latter  seeks  to  hold  the  former  liable  in 
damages  as  a  borrower,  while  the  former  admits  that 
he  must  take  an  oath  in  the  capacity  of  hirer.  Such 
an  admission,  consequently,  does  not  necessitate  the 
bailee’s  taking  an  oath  to  the  effect  that  it  was  the 
hired  cow  which  has  died,  or  that  it  has  died  on 
the  day  or  at  the  time  it  was  hired. 

The  Gemara  (/.  c.)}  however,  sustains  the  ruling  of 
this  Mishnah  on  the  theory  known  in  Jewish  juris¬ 
prudence  as  the  oath  of  adherence  (“Gilgul  Shebuah”). 
I.  e.,  if  the  defendant  to  an  action  seeks  to  establish 
a  certain  fact,  which  is  to  constitute  his  defense  and 
for  which  he  must  take  an  oath  to  substantiate  the 
same,  and  the  plaintiff  seizes  the  opportunity  to 
confront  him  with  another  claim,  upon  which,  had 
it  been  made  separately,  no  oath  would  have  been 
taken,  the  second  claim  is  adhered  to  the  first,  and 
the  defendant  must  take  an  oath  for  the  second  claim 
in  connection  with  the  first.  As  in  the  case  cited  in 
the  text,  when  the  bailee  contends  that  the  hired  cow 
has  died  a  natural  death,  he  must  take  an  oath  to 
substantiate  such  contention.  ( Vide  Chapter  VII, 
Mishnah  VIII,  supra.)  When,  therefore,  the  bailor 


Borrowing  of  Animals  157 

parties  have  to  suffer  the  damage  in  equal 
proportions  (5). 

Mishnah  III.  One  loans  a  cow,  and  the 
owner  sends  it  to  the  borrower  by  his  son, 
slave  or  messenger;  or  by  the  borrower’s  son, 
slave  or  messenger  (6).  If  the  cow  dies  (on 

claims  that  it  was  the  loaned  cow  which  has  died,  the 
bailee  must  embody  in  his  oath  that  it  was  the  hired 
cow  which  has  died  a  natural  death ,  although  for  the 
fact  that  it  was  the  hired  cow  no  oath  would  have  to 
be  taken  by  him  otherwise  (Alfasi ;  Maimonides,  Laws 
of  Loan  and  Bailment ,  Chapter  ill,  Law  3). 

(5) .  This  view  does  not  prevail,  because  on  prin¬ 
ciples  of  evidence  the  plaintiff  has  the  burden  of 
proving  his  case  in  every  instance.  When,  therefore, 
both  litigants  are  uncertain  as  to  the  liability,  no 
money  can  be  extorted  from  the  defendant  and  given 
to  the  plaintiff,  by  reason  of  a  mere  doubtful  claim 
made  by  the  latter. 

(6) .  If  the  borrower  appoints  an  agent  for  the 
purpose  of  bringing  the  cow  from  the  hirer,  his  lia¬ 
bility  as  a  borrower  commences  from  the  moment 
the  cow  has  come  into  the  possession  of  such  agent. 
The  ruling  of  this  Mishnah  is  explained  in  the 
Gemara  (Baba  Kama  104a),  that  the  borrower  has 
never  authorized  the  messenger  to  bring  the  cow  in 
question  to  him;  but  that  such  person  was  in  the 
employ  of  the  borrower  at  that  time,  and  the  owner, 
on  the  strength  of  such  employment,  has  sent  the  cow 
by  him.  The  borrower,  therefore,  is  not  liable  as 


158 


Mishnah :  Baba  Meziah 


its  way)  the  borrower  is  not  liable  (7).  If, 
however,  the  borrower  has  said  to  the  owner: 
“  Send  it  to  me  by  my  son,  slave  or  messenger ; 
or  by  your  son,  slave  or  messenger;”  or  in 
case  the  owner  has  said  to  the  borrower: 
”1  will  send  it  to  you  by  my  son,  slave  or 
messenger,”  and  the  borrower  said:  “Do  so,” 
and  the  owner  has  sent  the  cow  accordingly 
and  it  has  died  (on  its  way),  the  borrower  is 
liable.  The  same  law  is  applicable  to  the 
return  of  the  bailment  (8). 

Mishnah  IV.  One  exchanges  a  cow  for  an 

such  from  the  time  the  cow  has  come  into  the 
possession  of  the  messenger. 

(7) .  The  liability  of  a  borrower  as  such  begins 
from  the  time  the  bailment  actually  comes  into  his  pos¬ 
session,  but  not  before  then  {Gemara  99a;  Maimonides, 
Laws  of  Loan  and  Bailment ,  Chapter  m,  Law  2). 

(8) .  If  the  borrower  returns  the  animal  before  the 
expiration  of  the  term  for  which  it  was  loaned,  he  is 
held  liable  as  a  borrower  until  it  is  actually  brought 
back  into  the  possession  of  the  bailor.  If,  however, 
he  returns  the  bailment  after  the  term  for  which  it  was 
loaned  has  expired,  his  position  is  then  changed  from 
that  of  a  borrower  into  that  of  a  bailee  for  hire,  and  he 
is  liable  only  in  cases  of  ordinary  neglect  ( Gemara 
8ob-8ia;  Alfasi  and  Maimonides,  Laws  of  Loan  and 
Bailment ,  Chapter  ill,  Law  2). 


Evidence 


i59 


ass,  and  the  cow  brings  forth  young  ones;  or 
one  sells  his  female  slave  and  she  gives  birth 
to  a  child.  The  vendor  claims  that  this  has 
happened  before  the  sale  had  been  consum. 
mated,  and  the  vendee  claims  that  it  has 
happened  thereafter,  the  value  of  such  off¬ 
spring  is  to  be  divided  equally  between  the 
parties  (9).  One  is  possessed  of  two  male- 

(9).  This  decision  is  wrong  on  principles  of  evi¬ 
dence.  The  law  is  well  established  that  the  defendant 
is  in  every  instance  favored  with  the  presumption 
of  possession.  In  cases,  therefore,  where  there  exists 
a  doubtful  question  of  fact,  and  no  evidence  is  possible 
of  being  produced  by  either  party  to  the  controversy 
to  clear  up  such  doubt,  it  is  then  the  defendant  that 
is  benefited  by  the  existing  doubt. 

In  the  case  mentioned  in  the  text,  the  question  for 
the  court  to  decide  is  whether  the  birth  has  taken 
place  before  or  after  title  had  passed  to  the  vendee. 
When  there  is  no  evidence  produced  by  either  party 
whereby  such  doubtful  question  can  be  cleared  up, 
the  law  is  then  this:  If  the  cow  or  the  maid-servant 
was,  at  the  time  the  agreement  was  made,  in  the  pos¬ 
session  of  one  of  the  parties,  and  the  adverse  party 
seeks  to  establish  a  right  of  ownership  in  him,  the 
latter,  as  party  plaintiff,  can  obtain  no  recovery  of 
his  claim,  because  he  is  unable  to  prove  his  case  by  a 
fair  preponderance  of  evidence.  If  the  cow  or  the 
maid-slave  was  then  in  the  possession  of  neither  party 
to  the  action,  but  was  in  common  or  public  grounds 


160  Mishnah:  Baba  Meziah 

slaves,  a  large  and  a  small  one;  or  he  is  pos¬ 
sessed  of  two  fields,  a  large  one  and  a  small  one 
(and  he  has  entered  into  an  agreement  with  a 
certain  party  to  sell  him  one  of  his  slaves  or 
one  of  his  fields) .  The  vendor  then  says  that 
he  has  sold  the  small  one,  and  the  vendee  says 
that  he  does  not  know  (which  of  the  slaves  or 
of  the  fields  was  meant  to  be  sold  by  the 
agreement),  the  latter  gets  title  to  the  small 
one.  If  the  vendee  says  that  he  has  bought 
the  large  one  and  the  vendor  says  that  he  does 
not  know,  the  former  gets  title  to  the  large 
one.  If  the  vendor  says  that  he  has  sold  the 
small  one  and  the  vendee  says  that  he  has 
bought  the  large  one,  the  vendor  shall  take  an 
oath  that  he  has  intended  to  sell  the  small  one 
(and  the  vendee  gets  title  to  the  small  one). 
If  the  vendor  says  that  he  does  not  know  and 
the  vendee  likewise  says  that  he  does  not  know, 

when  such  question  has  arisen,  the  vendor,  as  the 
first  owner,  is  then  favored  with  the  presumption  of 
preemption.  The  burden  of  proof  is  cast  upon  the 
vendee  who  is,  by  reason  of  the  presumption  raised 
in  law  in  favor  of  the  vendor,  considered  the  plain¬ 
tiff  in  the  controversy  ( Gemara  iooa;  Alfasi  and 
Maimonides,  Laws  of  Sales,  Chapter  iv,  Law  io). 


Ownership  in  Trees  161 

the  difference  (of  value  between  the  two  slaves 
or  fields)  is  to  be  divided  between  them. 

Mishnah  V.  If  one  sells  his  olive-trees  for 
fuel,  and  (before  they  are  removed  by  the  ven¬ 
dee)  they  produce  some  olives,  the  oil  of  which 
is  less  than  one-quarter  of  a  lug  from  the  meas¬ 
ure  of  a  seah ,  they  belong  to  the  vendee.  If 
the  olives  produce  more  than  a  lug  (of  oil)  from 
one  seah ,  and  the  vendee  claims  that  his  trees 
have  produced  them,  while  the  vendor  claims 
that  his  soil  has  produced  them,  they  are  to 
be  divided  between  the  parties  (io). 

(io).  A  sells  his  trees  to  B  for  fuel,  and  it  is  agreed 
by  the  parties  that  the  trees  shall  immediately  be 
removed  by  the  vendee.  B,  notwithstanding  such 
an  agreement,  allows  the  trees  to  remain  there  for 
some  length  of  time.  If  the  trees  in  the  meantime 
have  produced  some  olives,  they  belong  to  the  vendor 
no  matter  how  trivial  their  value  may  be.  If,  on  the 
other  hand,  it  has  been  agreed  by  the  parties  that  the 
trees  should  remain  attached  to  the  soil  for  a  certain 
time,  or  that  they  should  be  removed  by  the  vendee 
whenever  he  sees  fit,  and  before  such  removal  is  made 
they  produce  some  olives,  they  belong  to  B  irrespective 
of  their  pecuniary  value.  In  the  Mishnah  now  under 
discussion,  no  express  agreement  has  been  made  as  to 
when  the  trees  should  be  removed  by  the  vendee. 
When,  therefore,  the  olives  are  of  slight  value,  it  is 

ii  / 


162 


Mishnah :  Baba  Meziah 


If  a  stream  carries  off  one's  olive-trees  and 
deposits  them  in  a  neighbor’s  field  (where  they 
have  produced  some  olives),  and  the  owner 
of  the  field  says:  “My  trees  have  produced 
them,”  while  the  owner  of  the  soil  says:  “My 
soil  has  produced  them,”  the  olives  are  to  be 
divided  equally  between  both  parties. 

Mishnah  VI.  The  lessor  cannot  dispossess 
the  tenant  during  the  entire  rainy  season,  from 
the  Feast  of  Tabernacles  until  Passover  {i.  e ., 
six  months)  (n);  in  the  summer,  for  a  period 

implied  that  the  owner  of  the  soil  has  abandoned  them. 
If,  however,  they  are  of  considerable  value,  they  have 
to  be  divided  between  the  parties  ( Gemara  ioob; 
Alfasi  and  Maimonides,  Laws  of  Adjacent  Owners , 
Chapter  iv,  Law  n). 

(n).  When  one  leases  a  house  for  a  monthly 
rental,  not  specifying  when  the  term  of  such  lease  is  to 
expire,  the  landlord  cannot  dispossess  the  tenant 
during  the  six  rainy  months,  unless  he  gives  notice 
to  the  tenant,  thirty  days  before  the  rainy  season  sets 
in,  that  he  desires  to  terminate  the  tenancy  or  that  he 
desires  to  raise  the  rental.  If  no  such  notice  is  given, 
the  tenant  has  a  right  to  continue  occupying  the  premi¬ 
ses  during  the  entire  rainy  season  under  the  original 
terms  of  the  lease,  because  in  the  rainy  season  it  was 
extremely  difficult  to  obtain  vacant  premises.  The 
tenant  likewise  must  give  notice  to  the  landlord  of  his 
intention  to  terminate  his  tenancy,  thirty  days  before 


Landlord  and  Tenant 


163 


of  thirty  days  (12);  in  large  cities,  for  twelve 
months  whether  in  the  rainy  season  or  in  the 
summer  (13);  in  the  case  of  shops,  for  twelve 
months  whether  in  small  towns  or  in  large 
cities  (14).  Rabban  Simeon  ben  Gamaliel 
says:  “The  term  for  shops  of  bakers  and 
dyers  is  three  years”  (15). 

Mishnah  VII.  If  one  rents  a  house  to  his 

the  rainy  season  sets  in  {Gemara  101b;  Alfasi  and 
Maimonides,  Laws  of  Hiring ,  Chapter  vi,  Laws  7-8). 

The  landlord  may,  however,  raise  the  rental  during 
the  rainy  season,  even  when  no  notice  to  that  effect 
has  been  given,  if  the  value  of  dwellings  has  increased 
all  over  (/.  c.,  and  Maimonides,  l.  c .,  Law  9). 

(12) .  In  the  summer  the  landlord  may  dispossess 
the  tenant  at  any  month  upon  giving  him  thirty  days 
notice. 

(13) .  He  must  give  the  tenant  twelve  months 
notice  prior  to  the  time  he  intends  to  terminate  the 
lease,  because  in  large  cities  it  was  difficult  to  obtain 
premises  in  the  middle  of  the  year. 

(14) .  In  cases  of  stores  the  landlord  must  give 
the  tenant  twelve  months  notice,  because  store¬ 
keepers  generally  sell  on  credit  to  the  people  of  that 
vicinity.  The  landlord  must,  therefore,  give  him 
ample  time  within  which  to  collect  all  his  debts 
(Rashi  to  Gemara  101b). 

(15) .  This  view  is  the  prevailing  law,  because 
bakers  and  dyers  generally  extend  credit  to  their 
customers  on  long  terms  ( Gemara  101b). 


164 


Mishnah :  Baba  Meziah 


neighbor,  he  has  to  furnish  the  house  with  a 
door,  a  door-bolt,  a  lock  and  such  other  things 
as  are  required  to  be  made  by  a  specialist. 
The  tenant  himself  has  to  furnish  those  things 
which  do  not  require  to  be  made  by  a  special¬ 
ist.  The  manure  belongs  to  the  lessor  (16), 
and  the  lessee  has  a  right  of  property  only  to 
the  ashes  taken  out  of  the  oven  or  range  of 
pots. 

Mishnah  VIII.  If  one  rents  a  house  for  one 
year ,  and  a  leap-year  has  been  proclaimed, 
the  entire  benefit  of  the  intercalated  month 
goes  to  the  tenant  (17).  If  he  rents  the  house 
by  the  month  and  a  leap-year  has  been  pro¬ 
claimed,  the  benefit  of  the  intercalated  month 
goes  to  the  landlord.  It  happened  in  Sep- 
phoris  (in  Upper  Galilee)  that  a  man  leased 

(16) .  The  manure  belongs  to  the  lessee  only  when 
it  was  accumulated  from  cattle  not  belonging  to 
either  party  to  the  lease,  and  the  place  where  it  was 
accumulated  had  not  been  leased  to  the  tenant,  but 
not  otherwise  ( Gemara  102a). 

(17) .  In  the  Jewish  leap-year,  an  extraordinary 
month  is  inserted.  When  the  lease  is  made  for  a  year, 
the  intercalated  month  is  included,  and  therefore  the 
lessee  is  entitled  to  occupy  the  premises  leased  for 
thirteen  months  which  constitute  one  leap-year. 


Landlord  and  Tenant 


165 


baths  to  his  neighbor  for  a  rent  of  '‘twelve 
golden  denars  a  year,  a  denar  per  month.” 
A  leap-year  having  been  proclaimed,  the 
parties  to  the  agreement  brought  the  case 
before  Rabban  Simeon  ben  Gamaliel  and 
Rabbi  Jose  (to  ascertain  who  was  entitled  to 
the  intercalated  month).  The  latter  decided 
that  the  benefit  of  the  intercalation  should  be 
divided  equally  between  both  litigants  (18). 

(18).  This  view  is  not  the  prevailing  law,  because 
the  landlord,  who  is  the  defendant  in  the  case,  is  en¬ 
titled  to  the  benefit  of  the  doubt.  When,  therefore, 
the  terms  of  the  agreement  are  conflicting,  it  is  the 
provision  which  is  more  favorable  to  the  lessor  that 
prevails  ( Gemara  102b).  Even  when  the  lessor  is  the 
party  plaintiff,  as  where  the  lessee  has  already  occu¬ 
pied  the  premises  during  the  intercalated  month  and 
the  lessor  seeks  to  recover  the  rent  for  such  occupation, 
the  burden  of  proof  is  cast  upon  the  lessee  and  the 
lessor  is  benefited  by  the  doubt.  Realty  is  always 
deemed  in  the  eyes  of  the  law  to  be  in  the  possession  of 
the  owner,  and,  as  the  doubt  as  to  who  is  entitled  to 
the  benefit  of  the  intercalated  month  has  arisen  before 
the  premises  had  been  occupied  by  the  lessee,  the 
lessor  is  favored  with  a  presumption  and  it  is  then  for 
the  lessee  to  come  forward  with  evidence  to  rebut  such 
presumption.  If  the  lessee  is  unable  to  produce  any 
evidence  whereby  it  can  be  proven  that  the  baths  were 
leased  for  the  entire  year  and  not  by  the  month,  he  is 


1 66 


Mishnah :  Baba  Meziah 


Mishnah  IX.  If  one  rents  a  house  to  his 
neighbor  and  it  collapses,  the  lessor  must 
build  another  dwelling  for  the  tenant  (19); 

bound  to  pay  for  the  intercalated  month.  (View  of 
Rab  Nachman,  Gemara  102b;  Alfasi;  Maimonides, 
Laws  of  Hiring ,  Chapter  vii,  Law  2). 

(19).  If  A  says  to  B :  “I  lease  you  this  house  for  a 
period  of  one  year,”  and  during  such  tenancy  the  house 
becomes  untenantable,  the  lessor  must  not  build  an¬ 
other  house  for  the  lessee  to  be  occupied  by  him  until 
the  expiration  of  the  term  of  the  lease.  The  reason  for 
this  is,  that  the  sole  consideration  for  B’s  promise  to 
pay  a  year’s  rent  was  that  A  should  surrender  the 
possession  of  those  particular  premises  designated  in 
the  lease.  If  the  lessor  surrenders  possession  thereof 
to  the  tenant,  he  has  thereby  done  everything  on  his 
part  he  has  obligated  himself  to  do  under  the  terms 
of  the  lease. 

If  A  says  to  B:  “I  will  lease  you  a  house  for  one 
year,”  and  thereafter  when  B  takes  possession  of  such 
house  it  is  rendered  untenantable,  A  is  bound  to  build 
another  house  for  B  in  order  that  he  may  be  entitled 
to  recover  a  year’s  rental.  The  consideration  for  the 
lessee’s  promise  to  pay  a  year’s  rent  in  this  instance 
is  the  lessor’s  obligation  to  provide  the  lessee  with  a 
residence  for  the  term  stipulated,  and  not  the  sur¬ 
render  of  the  possession  of  any  particular  house. 
In  this  case,  however,  the  lessor  is  not  compelled  to 
build  a  dwelling  exactly  similar  to  the  one  previously 
occupied  by  the  tenant,  but  he  may  build  any  kind  of 
a  house  suitable  for  dwelling  purposes.  ( Gemara  103a; 


Landlord  and  Tenant  167 

if  the  first  house  was  small,  he  must  not 
build  the  new  one  larger,  and  vice  versa ;  if 
the  first  one  was  a  single  house,  he  is  not 
allowed  to  build  two  houses  instead,  and  vice 
versa.  The  number  of  windows  must  not  be 
diminished  or  increased,  unless  it  is  done  with 
the  consent  of  both  parties. 

Alfasi  and  Maimonides,  Laws  of  Hiring ,  Chapter  v, 
Law  7;  vide  also  note  7  to  Chapter  VI,  supra.) 

The  ruling  of  the  present  Mishnah  can,  therefore, 
be  sustained  only  in  a  case  where  the  lessor  has  said 
to  the  lessee:  “I  will  lease  you  a  house  like  this  one” 
In  such  a  case,  the  lessor  is  bound  to  provide  the  lessee 
with  a  dwelling  similar  to  the  one  particularly  men¬ 
tioned,  for  the  entire  term  of  the  lease,  if  such  dwelling 
is  rendered  untenantable.  He  is,  however,  not  com¬ 
pelled  to  build  in  a  vicinage  similar  to  the  one  wherein 
the  previous  house  was  built  ( 1 .  c.  ). 


CHAPTER  IX 


LETTING  LAND  TO  FARM — WAGES — 

PLEDGES 

Mishnah  I.  When  one  leases  a  field  from 
his  neighbor,  he  must  cut  (the  grain)  where  it 
is  the  custom  to  cut,  and  pull  out  where  it  is 
the  custom  to  pull  out ;  he  must  plough  up  the 
ground  after  (cutting  or  pulling,  in  order 
to  kill  the  weeds)  where  it  is  customary  to 
plough  up  (i) — all  depending  upon  the  custom 

(i).  The  following  are  the  various  agreements  of 
leasing  to  farm,  with  respect  to  the  consideration 
given  by  the  lessee  to  the  lessor  for  the  lease,  found 
in  the  Talmud :  i .  Where  the  lessee,  in  consideration 
of  the  lease,  agrees  either  to  pay  the  lessor  a  certain 
sum  of  ready  money,  or  to  give  him  a  stipulated 
measure  of  produce.  2.  Where  the  lessee  agrees  to 
give  the  lessor  a  certain  per  centum  of  the  produce  of 
the  field  leased  by  him,  thus  making  the  consideration 
contingent,  depending  upon  the  fertility  of  the  soil. 

The  rules  of  law  laid  down  in  the  present  Mishnah 
and  in  the  one  following  are  applicable  to  either  one 

168 


169 


Letting  Land  to  Farm 

of  the  province.  Just  as  they  (lessor  and 
lessee)  share  in  the  grain,  in  that  proportion 
they  also  share  in  the  straw  and  the  stubble; 
just  as  they  share  in  the  wine,  in  that  propor¬ 
tion  they  also  share  in  the  (dead)  branches 
(of  the  vines)  and  the  cane  (used  for  the  pur¬ 
pose  of  propping  the  vines),  (for  the  reason) 
that  both  parties  are  to  provide  such  cane. 

Mishnah  II.  If  one  leases  from  his  neigh¬ 
bor  a  field  which  depends  upon  irrigation,  or 
which  contains  a  group  of  trees,  and  there¬ 
after  the  spring  (for  irrigation)  ceases  to  run, 
or  the  group  of  trees  is  cut  down,  he  is  not 
entitled  to  deduct  from  the  rental  stipulated 
(by  him  to  be  paid  in  consideration  of  the  lease) 
(2).  If,  however  (at  the  time  the  agreement 

of  the  agreements  hereinbefore  mentioned  (Gemara 
104a). 

(2).  A  leases  his  field  to  B  and,  at  the  time  such 
an  agreement  is  made,  neither  of  the  parties  describes 
the  nature  of  the  field  to  be  leased.  It  thereafter 
turns  out  that  the  field  thus  leased  has  a  spring  thereon 
wherefrom  it  is  artificially  watered,  or  that  it  contains 
a  group  of  trees.  Thereafter,  when  B  has  taken  pos¬ 
session  of  the  field  pursuant  to  the  agreement,  the 
spring  has  ceased  to  run  or  the  trees  have  been  cut 
down.  The  lessee,  by  reason  of  the  aforesaid  event, 


170 


Mishnah :  Baba  Meziah 


was  made  between  the  parties) ,  the  tenant  has 
expressly  said:  “Rent  me  this  field  depending 
upon  irrigation;  this  field  containing  a  group 
of  trees/’  and  it  thereafter  happens  that  the 
spring  fails  or  that  the  group  of  trees  is  cut 
down,  he  may  deduct  from  the  rental  stipu¬ 
lated  (3). 

has  no  right  to  deduct  from  the  rental  agreed  by  him 
to  be  paid  for  the  lease,  even  if  the  value  of  the  field 
has  thereby  been  materially  depreciated.  The  spring 
or  the  group  of  trees,  not  having  been  mentioned  by 
either  party  at  the  time  of  the  formation  of  the  lease, 
was  not  intended  by  either  one  of  them  to  make  it 
of  the  essence  of  the  consideration.  The  law,  there¬ 
fore,  does  not  make  the  promise  of  the  lessee  to  pay 
the  rental  stipulated  conditioned  and  dependent 
upon  the  existence  of  the  spring  or  of  the  group  of 
trees,  if  such  was  not  the  intention  of  the  parties. 

(3).  If,  however,  at  the  time  of  the  formation  of 
the  agreement  of  leasing,  the  tenant  has  said  that 
this  field  depending  upon  irrigation  or  that  this  field 
containing  a  group  of  trees  is  to  be  leased,  he  may 
deduct  from  the  rental  stipulated,  if  the  spring  fails 
or  the  group  of  trees  is  cut  off. 

The  reason  for  the  aforesaid  rule  of  law  is,  as  stated 
in  the  Gemara  104a,  that  when  the  lessee  says  “this 
field”  it  is  obvious  that  he  has  been  on  the  premises 
that  were  to  be  leased  and  has  undoubtedly  carefully 
examined  their  condition  and  was  consequently  aware 
of  the  existence  of  the  spring  or  of  the  group  of  trees. 


Letting  Land  to  Farm  17 1 

Mishnah  III.  If  one  leases  a  field  from  his 
neighbor  and  he  permits  it  to  lie  fallow  (4), 
it  is  estimated  (by  the  court)  how  much  the 
field  would  have  produced  if  cultivated,  and 
he  pays  accordingly,  because  it  is  generally 
provided  for  (in  leases  letting  land  to  farm): 
“If  I  allow  the  field  to  lie  fallow  and  do  not 
work  it,  I  shall  pay  according  to  the  best 
possible  results”  (5).  _ 

Why  then  was  he  cautious  to  mention  specifically 
“ depending  upon  irrigation”  or  “containing  a  group 
of  trees,”  if  not  for  the  reason  that  he  had  intended 
to  make  the  spring  or  the  group  of  trees  of  the  essence 
of  the  consideration?  His  promise  to  pay  the  rental 
stipulated  was,  therefore,  made  by  him  expressly 
conditioned  and  dependent  upon  the  existence  of  the 
spring  or  of  the  group  of  trees.  (This  view  is  sus¬ 
tained  by  Alfasi  and  Maimonides,  Laws  of  Hiring , 
Chapter  vm,  Law  4). 

(4) .  The  ruling  of  this  Mishnah  refers  to  a  case 
where  the  lessee,  in  consideration  of  the  lease,  agrees 
to  pay  the  lessor  with  a  certain  per  centum  of  the 
products  of  the  field  (Maimonides,  Commentary  on 
the  Mishnah). 

(5) .  It  is  not  at  all  essential  that  an  express  provi¬ 
sion  to  that  effect  should  be  made  in  the  contract  of 
leasing  in  order  that  the  lessor  should  be  entitled  to 
the  recovery  mentioned  in  the  text.  In  the  absence 
of  such  an  express  provision,  the  lessee  must  pay  the 


172 


Mishnah :  Baba  Meziah 


Mishnah  IV.  If  one  leases  a  field  from 
his  neighbor  and  he  refuses  to  weed  it, 
saying  to  the  lessor:  “What  does  that  con¬ 
cern  you,  since  I  will  pay  you  all  you  are 
entitled  to  under  the  agreement,”  he  is  not  to 
be  listened  to,  as  the  lessor  may  say  to  him : 
“To-morrow  you  will  surrender  the  posses¬ 
sion  of  this  field,  and  the  weeds  will  then  be 
left  for  me  to  be  removed  therefrom”  (6). 

Mishnah  V.  If  one  leases  a  field  from  his 
neighbor  (7) ,  and  it  is  not  productive,  he  must 
work  on  it  as  long  as  there  is  enough  crop  to 
make  a  heap.  Said  Rabbi  Judah:  “What 
standard  is  a  'heap  of  grain’?  (/.  e .,  this 

measure  of  damage  named  in  the  text,  because  it  is 
the  general  custom  that  such  a  provision  should  be 
embodied  in  an  agreement  of  this  nature.  It  is, 
therefore,  implied  in  law  that  the  parties  to  the  agree¬ 
ment  were  willing  to  abide  by  the  custom  of  the  prov¬ 
ince  generally  prevailing  in  such  cases  ( Tosafot  to 
Gemara  104a;  Rabbenu  Asher). 

(6) .  The  ruling  of  this  Mishnah  refers  to  a  case 
where  the  lessee,  in  consideration  of  the  lease,  agreed 
to  pay  the  lessor  a  certain  quantity  of  products,  not 
depending  upon  the  fertility  of  the  soil. 

(7)  .  This  decision  has  reference  to  a  case  where  the 
lessee  is  to  give  the  lessor  a  certain  per  centum  of  the 
productions  of  the  field  (Rashi  to  Gemara  105a). 


173 


Letting  Land  to  Farm 

cannot  be  made  a  standard  alike  for  large  and 
small  fields.)  If,  therefore,  there  is  a  proba¬ 
bility  that  the  products  raised  will  be  sufficient 
to  resow  the  field  therewith  (he  is  not  permitted 
to  abandon  it)  ”  (8). 

Mishnah  VI.  If  one  leases  a  field  from  his 
neighbor  (9),  and  thereafter  the  crop  is  eaten 
up  by  a  locust  or  is  blasted  (by  a  storm),  he 
may  deduct  from  the  rental  named  in  the 
agreement,  if  the  calamity  be  general  (10); 

(8) .  Rabbi  Judah’s  view  does  not  prevail  (Mai- 
monides,  Commentary  on  the  Mishnah). 

(9) .  In  this  case,  the  lessor  is  to  receive  a  certain 
per  centum  from  the  products  of  the  field. 

(10) .  If  it  was  an  event  which  happened  with 
most  of  the  fields  in  that  vicinity,  the  lessee  may 
deduct  from  the  rental  stipulated  {Gemara  105b). 
If,  however,  it  was  an  occurrence  which  happened 
with  this  particular  field  only,  the  lessee  has  no  right 
to  deduct  from  the  rental. 

The  principle  of  law  upon  which  the  decision  in  this 
Mishnah  can  be  upheld  cannot  be  elucidated  either 
from  the  Gemara  or  from  any  of  the  commentators 
thereon.  Rashi  to  Gemara  105b  (obviously  following 
the  dicta  found  in  the  Gemara  106a)  says  that  the 
reason  the  lessee  cannot  deduct  from  the  rental  in 
the  last  case  cited  in  the  Mishnah  is,  that  the  lessor 
may  claim  that  the  occurrence  which  happened  was 
due  to  the  ill-luck  of  the  lessee.  This,  however, 


174 


Mishnah :  Baba  Meziah 


but  if  it  is  not  a  general  calamity,  he  has  no 

right  to  deduct  from  the  rental.  Rabbi  Judah 
says:  “If  the  lessee  has  leased  the  field  for  a 
money  consideration,  he  cannot  deduct  from 
the  rental  under  any  circumstances”  (n). 

Mishnah  VII.  When  one  leases  a  field  from 
his  neighbor  for  ten  kors  of  wheat  per  annum, 
and  the  quality  of  the  wheat  raised  is  poor,  he 
may  pay  the  lessor  with  part  of  the  same; 
should  the  wheat  raised  happen  to  be  better 
than  usual,  he  cannot  say  to  the  lessor:  “I 
will  buy  wheat  (of  ordinary  quality)  in  the 
market  and  pay  you  therewith,”  but  he  must 
pay  his  rent  out  of  his  own  crop  (12). 

cannot  be  claimed  by  the  lessor  when  it  was  a  general 
calamity. 

(11) .  This  view  does  not  prevail;  it  is  of  no  mo¬ 
ment  whether  the  lessee’s  promise  was  to  pay  a  money 
consideration  or  to  pay  with  the  products  of  the  field 
(Maimonides,  Commentary  on  the  Mishnah). 

(12) .  A  leases  his  field  to  B  for  the  purpose  of 
sowing  a  certain  crop,  say  wheat,  and,  in  consideration 
of  such  lease,  the  latter  agrees  to  pay  to  the  former  a 
certain  measure  of  wheat.  It  is,  however,  not  stated 
expressly  whether  it  should  be  paid  with  a  measure 
of  wheat  yielded  from  the  field,  or  with  wheat  bought 
in  the  market.  Such  an  agreement  is  then  construed 


Letting  Land  to  Farm  175 

Mishnah  VIII.  He  who  rents  a  field  from 
his  neighbor  for  the  purpose  of  sowing  barley, 
has  no  right  to  sow  wheat;  if  for  the  purpose 
of  sowing  wheat,  he  may  sow  barley;  Rabban 
Simeon  ben  Gamaliel  forbids  it  (even  in  the 
last  named  instance) ;  if  to  sow  grain,  he  has 
no  right  to  sow  pulse;  but  if  for  pulse,  he  may 
sow  grain  instead;  Rabban  Simeon  ben  Gama¬ 
liel  forbids  it  (even  in  the  last  named  instance) 

(13)- 

Mishnah  IX.  If  one  leases  a  field  from  his 
neighbor  for  a  few  years  (less  than  seven) ,  he 
is  not  permitted  to  sow  flax  (14) ;  neither  is  he 
allowed  to  cut  timber  from  the  sycamore- 

by  the  court  to  import  that  it  must  be  paid  with  the 
wheat  produced  from  the  field  irrespective  of  its 
quality. 

(13) .  The  law  in  such  cases  is,  that  the  lessee  must 
not  vary  the  provision  embodied  in  the  agreement 
only  when  the  products  he  intends  to  sow  will  harm 
the  soil  to  any  greater  extent  than  those  he  has  origi¬ 
nally  agreed  to  sow,  but  he  is  permitted  to  vary  it 
vice  versa. 

(14) .  The  lessee,  at  the  expiration  of  the  term  of 
the  lease,  is  bound  to  surrender  the  field  in  as  good  a 
condition  as  it  had  been  when  he  first  took  possession 
thereof.  He,  therefore,  must  do  no  act  which  tends 
to  cauf3e  such  injuries  to  the  field  as  would  be  irrepa- 


176 


Mishnah :  Baba  Meziah 


trees  (15).  If,  however,  he  has  leased  it  for 
seven  years,  he  may  sow  flax  and  cut  timber 
from  the  sycamore-trees  (in  the  first  year 
only) . 

Mishnah  X.  When  one  leases  a  field  for  a 
Sabbatical  season  for  the  sum  of  seven  hundred 
zuz ,  the  Sabbatical  year  is  included  in  the  term 
of  the  lease.  If,  however,  he  leases  it  for 
seven  years  at  a  rent  of  seven  hundred  zuz , 

rable  before  the  time  he  has  to  surrender  the  possession 
of  the  field  to  the  lessor. 

As  explained  by  Rashi  to  Gemara  109a,  the  soil  is 
injured  by  the  roots  of  the  flax  to  such  an  extent  that 
it  cannot  be  brought  back  to  its  original  state  before 
the  expiration  of  seven  years.  If,  therefore,  the  lease 
is  for  a  lesser  term  than  seven  years,  no  flax  may  be 
sown  by  the  lessee,  because  the  injury  caused  to  the 
soil  by  its  roots  will  remain  even  after  the  termination 
of  the  lease. 

(15).  The  lessee  is  likewise  prohibited  from 
cutting  timber,  because  the  trees  wherefrom  the 
timber  is  cut  are  generally  not  restored  to  their 
previous  state  of  growth  before  the  expiration  of 
seven  years.  If  the  lease  is  for  less  than  seven 
years  and  the  lessee  cuts  timber  in  the  meantime, 
he  will  thereby  become  disabled  from  surrendering 
the  field,  at  the  termination  of  the  lease,  in  the 
condition  it  has  been  when  he  first  took  possession 
thereof. 


Wages  177 

the  Sabbatical  year  is  not  included  in  the 
term  of  the  lease  (16). 

Mishnah  XI.  A  laborer  hired  by  the  day 
collects  his  wages  at  any  time  during  the  night 
(following  the  day  of  his  employment)  (17); 
one  hired  by  the  night,  at  any  time  during  the 
(following)  day;  one  employed  by  the  hour, 
at  any  time  during  the  night  and  the  (follow- 

(16) .  A  and  B  enter  into  an  agreement  whereby 
it  is  stipulated  by  them  that  A  shall  lease  his  field  to 
B  for  a  Sabbatical  season ,  and  the  latter,  in  considera¬ 
tion  of  the  lease,  promises  to  pay  the  sum  of  seven 
hundred  zuz  to  the  former.  The  Sabbatical  year,  on 
which  the  soil  is  to  rest  (Lev.  xxv,  1-7),  is  then  to  be 
included  in  the  term  of  the  lease,  because  by  the  term 
Sabbatical  season  is  generally  understood  to  mean, 
six  years  of  sowing  the  soil  and  one  year  of  resting  it, 
but  not  seven  years  of  sowing.  When,  however,  the 
agreement  sets  forth  that  the  field  shall  be  leased  to 
B  for  seven  years ,  the  Sabbatical  year  is  not  to  be 
included  in  the  term  of  the  lease,  because  the  term 
seven  years  imports,  seven  years  within  which  the 
lessee  shall  be  able  to  sow  the  field  leased. 

(17) .  The  time  within  which  an  employee  can 
collect  his  wages  is  fixed  in  the  present  Mishnah,  in 
order  to  ascertain  whether  or  not  the  employer  is 
guilty  of  violating  the  commandment  of  the  Penta¬ 
teuch  (Lev.  xix,  13):  “  There  shall  not  abide  with 
thee  the  wages  of  him  that  was  hired  through  the 
night  until  morning.” 


12 


i78 


Mishnah :  Baba  Meziah 


ing)  day  (18);  one  employed  by  the  week, 
month,  year  or  Sabbatical  season,  if  his  term 
expires  in  the  day,  he  collects  his  wages  during 
the  remainder  of  the  day;  and  if  his  term 
expires  during  the  night,  he  collects  during 
that  night  and  on  the  (following)  day. 

Mishnah  XII.  The  commandments  of  the 
Pentateuch:  “On  the  same  day  shalt  thou 
give  him  his  wages”  (Deut.  xxiv,  15),  and 
‘  ‘  There  shall  not  abide  with  thee  the  wages 
of  him  that  was  hired  through  the  night  until 
morning”  (Lev.  xix,  13),  apply  to  the  payment 
for  the  use  of  cattle  or  implements  as  well  as 
to  wages.  (The  employer,  however,  is  con¬ 
sidered  a  violator  of  the  above  commandments 
only)  when  the  employee  demands  his  wages 
from  him  (in  due  time) ;  but  if  no  such  demand 
is  made,  the  employer  is  not  considered  a 

(18).  As  explained  by  Rab  ( Gemara  ma),  if  a 
laborer  is  employed  to  work  for  a  few  hours  in  the  day¬ 
time,  he  has  time  to  collect  his  wages  during  the 
remainder  of  that  day ;  when  he  is  engaged  to  work  for 
a  few  hours  in  the  nighttime,  he  can  collect  during 
the  remainder  of  that  night.  This  explanation  of  the 
text  is  upheld  by  Alfasi  and  Maimonides,  Laws  of 
Hiring ,  Chapter  xi,  Law  2). 


179 


Wages 

violator.  If  the  employer  has  given  the 
employee  an  order  to  a  storekeeper  (to  get 
from  him  merchandise  to  the  amount  of  his 
wages),  or  to  a  money-changer  (to  get  the 
amount  due  from  him),  the  former  is  not 
guilty  of  violating  the  above  commandments 
(if  the  laborer  is  not  paid  by  the  third  parties 
within  the  time  above  specified)  (19). 

A  laborer  can  collect  his  wages  merely  with 
an  oath  (and  need  not  produce  any  other 
evidence),  if  the  time  (provided  for  by  law  to 
collect  the  same)  has  not  yet  expired;  but  if 
the  time  for  collection  has  already  expired, 
he  cannot  collect  his  wages  with  a  mere  oath 
(20).  If,  however,  there  are  witnesses  to 

(19)  .  If  the  employer,  in  due  time,  gives  the  laborer 
an  order  to  a  third  party,  and  the  laborer  consents 
thereto,  it  is  considered  in  the  eyes  of  the  law  as 
satisfaction  and  payment  of  the  debt.  The  employer 
is,  therefore,  not  considered  guilty  of  violating  the 
commandments,  if  the  third  party  fails  to  pay  in  due 
time. 

(20) .  According  to  the  Mosaic  Law,  an  oath  is 
administered  to  a  defendant  only,  and  the  effect  of 
the  oath  is  to  exempt  him  from  liability,  because  he  is 
always  favored  with  the  presumption  of  possession. 
( Vide  note  1  to  Chapter  I,  supra.)  In  certain  cases, 


i8o 


Mishnah :  Baba  Meziah 


testify  that  the  employee  has  made  a  demand 
upon  his  employer  (in  due  time  and  that  he  was 
not  paid  then),  he  can  collect  his  wages  with 
an  oath  (even  when  the  time  for  collecting 
the  same  has  already  expired) . 

The  precept  (Deut.  xxiv,  15):  “On  the 

however,  the  Rabbis  have  modified  the  said  rule  of 
law,  and  have  enacted  that  the  plaintiff  should  take 
an  oath  instead  and  thereby  succeed  in  making  out 
the  burden  of  proof  cast  upon  him.  ( Vide  Shebuoth, 
Chapter  vii,  Mishnah  1.) 

In  the  case  as  presented  in  the  text,  the  employer 
would,  according  to  the  Law  of  Moses,  have  to  take 
an  oath  that  he  paid  and  be  exempt  from  liability, 
because  he  is  the  defendant  in  the  case.  But  as  he 
is  much  occupied  with  his  business  and  is  consequently 
more  apt  of  mistaking  facts  than  the  employee,  it  was 
enacted  that  the  latter  should  take  an  oath  instead, 
and  thereby  prove  his  case  ( Gemara  112b;  Maimonides, 
Laws  of  Hiring ,  Chapter  xi,  Law  6). 

The  laborer,  however,  can  collect  his  wages  with  an 
oath  only  when  the  action  was  instituted  by  him  in 
due  time,  for  then  his  claim  is  supported  by  the  pre¬ 
sumption,  that  a  debt  is  generally  not  paid  before  it 
is  due.  But  when  he  institutes  an  action  after  due 
time,  he  must  come  forward  with  evidence  to  prove 
his  case,  because  then  there  is  the  presumption  raised, 
in  favor  of  the  employer,  that  every  man  is  honest 
and  would  not  knowingly  violate  a  holy  command 
( Gemara  H2b-ii3a). 


1 8 1 


Pledges 

same  day  shalt  thou  give  him  his  wages,” 
applies  also  to  a  proselyte  (laborer),  but  the 
commandment  (Lev.  xix,  13):  “  There  shall 
not  abide  with  thee  the  wages  of  him  that  is 
hired  through  the  night  until  morning,”  does 
not  apply. 

Mishnah  XIII.  He  who  lends  money  to 
his  neighbor  may  take  a  pledge  from  him  only 
by  an  order  from  the  court  (21) ;  and  he  is  not 
allowed  to  enter  the  debtor’s  house  to  take 
the  pledge  (22),  as  it  is  said  (Deut.  xxiv,  11) : 

(21) .  A  lends  money  to  B  to  be  paid  at  a  certain 
fixed  time,  say  thirty  days.  If  the  debtor  does  not 
pay  the  sum  due  within  the  time  specified,  the  creditor 
has  then  a  right  to  take  a  pledge  from  him  in  order 
to  secure  the  payment  of  the  debt.  He,  however, 
cannot  take  such  pledge  without  obtaining  an  order 
from  the  court  to  that  effect,  and  the  order  must  be 
carried  out  by  an  officer  from  the  court  only  ( Gemara 
114b;  Rashi  to  Gemara  113a). 

At  the  time  the  loan  is  effected,  however,  the  credi¬ 
tor  may  take  a  pledge  to  secure  the  payment  thereof 
without  having  to  obtain  an  order  from  court  to  that 
effect  (Gemara  l.  c.;  Maimonides,  Laws  of  Creditor 
and  Debtor ,  Chapter  in,  Law  5). 

(22) .  Even  the  court  officer  is  not  permitted  to 
enter  the  debtor’s  house  to  take  the  pledge  {Gemara 
and  Maimonides,  l.  c.). 


Mishnah:  Baba  Meziah 


182 

“In  the  street  shalt  thou  stand  (and  the  man 
to  whom  thou  dost  lend  shall  bring  out  unto 
thee  the  pledge  into  the  street).”  If  two 
vessels  were  pledged,  the  pledgee  may  detain 
one,  but  must  restore  the  other  (whenever 
necessary);  e.  g.,  (if  the  pledgor  has  given  a 
pillow  and  a  plough  in  pledge),  the  pledgee 
must  return  the  pillow  for  the  night  and  the 
plough  for  the  day  (23).  If  the  pledgor  dies, 
the  pledgee  is  not  obligated  to  make  such 
returns  of  the  pledge  to  the  heirs  (24) .  Rab- 

(23) .  The  pledgee  must  return  the  vessel  pledged 
whenever  it  is  needed  by  the  pledgor  to  make  use 
thereof.  This  tanna  is  of  the  opinion  that  a  vessel 
wherewith  life-giving  food  is  made  may  never  be  sold 
by  him  for  the  purpose  of  satisfying  the  debt,  and 
daily  returns  thereof  must  be  made  to  the  pledgor. 
The  benefits  the  pledgee  derives  from  such  a  pledge 
are  thus  enumerated  in  the  Gemara  115b:  1.  That 
the  pledge  saves  the  debt  from  being  barred  by  the 
law  of  limitations  for  collecting  debts,  which  is  until 
the  Sabbatical  year;  2.  That  the  pledgee  acquires 
a  lien  on  the  pledged  article,  and  if  the  pledgor  dies 
without  leaving  real  property,  he  may  sell  such 
article  to  satisfy  the  debt.  Otherwise,  when  one  dies 
possessed  of  personal  property  only,  the  creditors 
cannot  collect  their  debts  from  the  personalty  in  the 
hands  of  the  heirs. 

(24) .  The  creditor  may  sell  the  articles  pledged 


Pledges  183 

ban  Simeon  ben  Gamaliel  says:  "Even  to  the 

pledgor  himself  the  pledgee  is  bound  to  return 

» 

the  pledge  for  the  first  thirty  days  only; 
thereafter  he  may  sell  it  under  the  supervision 
of  the  court  ”  (25). 

No  pledge  may  be  taken  from  a  widow 
whether  she  is  rich  or  poor,  as  it  is  said  (Deut. 
xxiv,  17):  "Thou  shalt  not  take  in  pledge 
the  raiment  of  a  widow.” 

He  who  takes  a  mill  in  pledge  violates  a 
negative  commandment  and  is  guilty  of  tak¬ 
ing  two  implements  to  pledge  (26),  as  it  is  said 
(/.  c.  6):  "No  man  shall  take  to  pledge  the 

to  satisfy  the  debt  upon  the  death  of  the  debtor. 
The  right  given  to  the  pledgor,  that  an  article  where¬ 
with  life-giving  food  is  made  may  never  be  sold  by 
the  pledgee,  is  purely  personal  and  is  not  inheritable. 

(25) .  Rabban  Simeon’s  view  is  not  sustained  by 
weight  of  authority.  The  prevailing  opinion  is  in 
accord  with  the  anonymous  decision  of  this  Mishnah, 
that  implements  used  for  the  preparation  of  life-giving 
food  may  never  be  sold  by  the  pledgee  during  the 
lifetime  of  the  pledgor,  and  daily  returns  thereof  must 
be  made  until  the  debt  has  been  satisfied. 

(26) .  If  he  takes  to  pledge  both  millstones,  even 
at  one  and  the  same  time,  he  is  guilty  of  violat¬ 
ing  two  negative  commandments  and  is  punished 
accordingly.  (Vide  Makoth.) 


184  Mishnah:  Baba  Meziah 

nether  or  the  upper  millstone.”  The  aforesaid 
rule  of  law  applies  not  only  to  millstones  but 
to  any  implements  wherewith  life-giving  food 
is  made,  as  it  is  said  ( l .  c,):  “For  he  taketh 
a  man’s  life  to  pledge.” 


CHAPTER  X 


RIGHTS  OF  UPPER  AND  LOWER  OWNERS— 
RIGHTS  OF  UPPER  TENANT— USE  OF 
PUBLIC  THOROUGHFARES 

Mishnah  I.  If  a  house  and  the  upper  story, 
belonging  to  two  persons,  collapse  (i),  both 
owners  share  in  the  timber,  stones  and  mortar 
(2).  (If  some  bricks  are  broken),  an  investi¬ 
gation  is  to  be  made  to  ascertain  from  what 
part  of  the  building  they  were  most  likely  to 
get  destroyed.  If  one  of  the  owners  recog¬ 
nizes  some  of  the  stones  (to  be  his),  he  may 
take  them,  provided  they  are  counted  in  (his 
share)  (3). 

(1) .  The  house  is  owned  by  two  persons,  the  lower 
compartment  belonging  to  one  and  the  upper  story 
to  the  other. 

(2) .  Both  owners  share  in  the  materials  only  when 
there  is  no  circumstantial  evidence  whereby  it  can  be 
ascertained  to  what  part  of  the  building  the  broken 
material  belonged,  but  not  otherwise  (Gemara  116b). 

(3) .  The  one  who  recognizes  the  material  is  en- 

185 


Mishnah :  Baba  Meziah 


186 

Mishnah  II.  If  there  is  a  lower  story 
(occupied  by  the  owner)  and  an  upper  story 
(inhabited  by  a  tenant) ,  and  (the  ceiling  of  the 
lower  story,  serving  as  flooring  to  upper  story) 
is  out  of  repair,  the  owner  refusing  to  repair 
the  same,  the  occupant  of  the  upper  story  has  a 
right  to  reside  in  the  lower  compartment 
until  the  ceiling  is  repaired  by  the  owner  (4). 

titled  to  it  only  when  the  adverse  owner  admits  that 
part  of  such  material  belongs  to  him,  and  as  to  the 
residue  he  does  not  know  whether  it  belongs  to  his 
co-owner  or  not.  Such  part  admission,  made  by  the 
adverse  co-owner,  casts  upon  him  the  burden  of 
taking  an  oath  to  the  effect  that  the  remaining  part 
of  the  material  in  dispute  does  not  belong  to  the 
claimant.  He  is,  however,  disabled  from  taking  an 
oath  in  this  instance  because  he  admits  that  he  does 
not  know  to  whom  the  remainder  belongs.  The  one, 
therefore,  who  has  recognized  the  material  is  entitled 
to  the  whole  of  it  ( Gemara  116b;  vide  also  note  2  to 
Chapter  VIII,  supra). 

(4).  The  Gemara  116b  says  that  this  rule  of  law 
holds  true  only  in  a  case  where  the  lessor,  at  the  time 
the  lease  was  made,  said  to  the  lessee:  “I  lease  you 
this  upper  story  on  this  house.”  The  lessor,  in  speci¬ 
fying  “on  this  house,”  has  thereby  granted  an  ease¬ 
ment  to  the  tenant,  making  the  lower  compartment 
servient  to  the  upper  story,  and  has  obligated  himself 
to  keep  the  lower  story  in  good  repair  so  that  it  should 
not  interfere  with  the  tenant’s  enjoyment  of  possession. 


Upper  and  Lower  Owners  187 

Rabbi  Jose  says:  '‘The  dweller  below  must 
provide  the  ceiling,  and  the  one  above  the 
pavement  (covering  the  ceiling  of  the  lower 
story  and  serving  as  flooring  to  the  upper 
story)”  (5). 

Mishnah  III.  If  a  house  and  the  upper 

( Vide  note  7  to  Chapter  VI,  and  note  19  to  Chapter 
VII,  supra). 

The  following  principle  of  law  would  seem  to  follow 
from  the  rules  of  law  laid  down  in  the  present  Mishnah 
and  in  Mishnah  IV,  infra :  If  a  man  acquires  an  ease¬ 
ment  either  by  grant  (as  in  the  present  case)  or  by 
necessity  (as  in  Mishnah  IV,  infra),  he  may,  as  a 
matter  of  law,  make  of  the  servient  tenement  that 
very  use  he  was  entitled  to  make  of  the  dominant 
tenement,  if  the  owner  of  the  servient  tenement  allows 
it  to  run  out  of  repairs,  thus  preventing  the  owner  of 
the  dominant  tenement  from  properly  enjoying  in 
its  possession. 

(5).  Rabbi  Jos&  is  of  the  opinion  that  the  pavement 
covering  the  ceiling  of  the  lower  story  is  made  for  the 
convenience  of  the  upper  tenant,  to  make  the  floor 
level,  but  not  for  his  safety,  and  therefore  the  lessor  is 
not  bound  to  repair  it.  The  anonymous  tanna  is  of 
the  opinion  that  the  pavement  is  made  chiefly 
for  the  purpose  of  preserving  the  floor,  and,  as  it 
is  for  the  safety  of  the  upper  tenant,  it  is  incumbent 
upon  the  owner  to  repair  it  ( Gemara  1 1 7a) .  The  view 
of  the  anonymous  tanna  is  the  prevailing  law  (Mai- 
monides,  Laws  of  Hiring,  Chapter  vi,  Law  4). 


i88 


Mishnah :  Baba  Meziah 


story  thereon,  belonging  (severally)  to  two 
persons,  collapse,  and  the  upper  owner  re¬ 
quests  his  co-owner  to  rebuild  (his  lower  story) 
but  he  refuses  to  do  so,  the  former  may  rebuild 
the  house  (lower  compartment)  and  occupy  it 
until  his  co-owner  will  reimburse  him  all  the 
expenditures  (he  has  incurred  in  rebuilding 
it).  Rabbi  Judah  says:  “Even  in  such  a  case 
the  upper  owner  is  occupying  his  co-owner’s 
premises,  and  therefore  must  pay  him  rent 
for  such  occupation.  If,  however,  the  upper 
owner  rebuilds  both  stories  and  roofs  the 
upper  one,  he  may  then  occupy  the  lower 
story  gratis  until  he  is  reimbursed  by  the 
lower  owner”  (6). 

(6).  The  view  of  the  anonymous  tanna  is,  that 
when  one  derives  certain  benefits  from  the  property 
belonging  to  another,  he  is  not  bound  to  pay  for  such 
benefits  if  the  use  of  the  property  is  not  in  any  way 
detrimental  to  the  owner.  In  other  words,  one  is 
bound  in  law  to  pay  not  for  the  benefits  he  obtains  for 
himself  from  the  property  belonging  to  another,  but 
for  the  detriments  caused  to  the  one  out  of  whose 
property  such  benefits  were  derived. 

In  the  present  case,  the  lower  owner  has  not  con¬ 
sented  to  rebuild  his  story,  and  consequently  had  no 
intention  of  making  use  of  his  vacant  lot.  If,  there- 


Upper  and  Lower  Owners  189 

Mishnah  IV.  The  same  is  the  case  with  an 
olive-press  which  is  built  in  the  crevice  of  a 
rock,  and  on  the  top  of  which  there  is  a  garden 
(belonging  severally  to  two  persons).  If  the 
roof  of  the  press  collapses  (so  that  the  upper 
owner  is  unable  to  sow  in  his  garden),  the 
owner  of  the  garden  has  a  right  to  descend  to 
the  bottom  of  the  press  and  sow  there,  until 

fore,  the  upper  owner  rebuilds  the  lower  compartment 
and  occupies  it,  the  lower  owner  is  not  to  be  com¬ 
pensated  for  such  occupation  because  it  is  not  in  any 
way  detrimental  to  him. 

Rabbi  Judah’s  view,  on  the  other  hand,  is  that  one 
is  bound  to  pay  for  the  benefits  he  obtains  from  the 
property  belonging  to  another,  even  when  such  use 
does  not  prove  to  be  detrimental  to  the  owner  thereof. 
The  only  instance  in  which  one  is  not  obligated  to  pay 
for  the  use  of  a  certain  article  belonging  to  another, 
is  where  such  use  is  neither  beneficial  to  the  one  using 
it,  nor  is  it  detrimental  to  the  owner. 

In  the  case  mentioned  in  this  Mishnah,  the  upper 
owner  is  not  bound  to  pay  for  the  use  and  occupa¬ 
tion  of  the  lower  compartment  only  in  the  event 
when  he  rebuilds  and  completes  both  stories.  The 
upper  owner  is  not  then  benefited  in  any  way  by  such 
use  as  he  has  his  own  story  ready  for  occupation,  and 
the  lower  owner  does  not  sustain  any  loss  thereby  as 
he  did  not  intend  to  have  his  story  rebuilt  at  present. 
(The  latter  opinion  does  not  prevail;  Maimonides, 
Commentary  on  the  Mishnah.) 


190 


Mishnah :  Baba  Meziah 


vaults  will  be  built  by  the  owner  thereof  (to 
support  the  roof  of  the  press-house)  (7). 

If  a  wall  or  a  tree  falls  on  a  public  thorough¬ 
fare  and  causes  some  damage,  the  owner  is  not 
liable  (8) .  If,  however,  time  was  given  to  him 
(by  court)  within  which  to  cut  off  the  tree  or 
to  tear  down  the  wall  (9) ,  (the  law  then  is  that) 
if  it  falls  before  the  time  has  expired,  he  is 
not  liable;  but  if  it  falls  thereafter,  he  is  liable. 

Mishnah  V.  One  has  his  wall  situated  near 
the  garden  of  his  neighbor  and  it  falls  (into 
such  garden) .  The  neighbor  says  to  him  (the 

(7)  .  In  this  case,  the  owner  of  the  garden  acquires 
an  easement,  to  make  use  of  the  support  of  the  vaults 
of  the  press-house,  by  necessity;  for  otherwise  he  is 
unable  to  enjoy  the  possession  of  his  garden.  As  to 
the  principle  of  law  involved  in  this  Mishnah,  vide  note 
4,  supra. 

(8) .  The  owner  is  not  liable  in  this  case  because 
it  is  considered  an  unavoidable  accident  (Rashi  to 
Gemara  117b).  It  must,  however,  be  proven  by  him 
that  the  wall  was  properly  built,  otherwise  he  is  liable 
( Tosefta  B.  M.  xi,  5),  because  the  mere  fact  that  a 
wall  collapses  raises  a  prima  facie  presumption  that 
it  was  not  properly  built. 

(9)  .  The  time  given  by  the  court  for  tearing  down 
a  wall  or  for  cutting  off  a  tree  was  thirty  days  ( Gemara 

118a). 


Use  of  Public  Thoroughfares  191 

owner  of  the  wall):  “Remove  your  stones 
(from  my  garden).”  The  owner  in  reply  says: 
“They  shall  be  yours  (as  I  renounce  my  right 
of  ownership  to  them),”  he  is  not  to  be  list¬ 
ened  to  (10).  If,  however,  after  the  neighbor 
has  accepted  such  offer,  the  owner  says : 
“Here  are  the  expenditures  (incurred  by  you 
in  removing  my  stones  from  your  field),  and 
I  will  take  what  belongs  to  me,”  he  is  not  to 
be  listened  to  (11). 

One  engages  a  workman  to  perform  certain 
labor  on  straw  or  stubble.  (When  the  work 
is  completed),  the  laborer  says  to  the  employer : 
“Pay  me  my  wages,”  and  the  employer  says: 
“Take  the  material  on  which  you  performed 
your  labor  in  lieu  of  your  wages,”  the  latter 


(10) .  The  owner  of  a  collapsed  wall  is  bound 
to  remove  the  stones,  and  he  cannot,  by  renouncing 
his  right  of  ownership,  free  himself  from  such  an 
obligation. 

(1 1) .  The  owner  cannot  retract  then  because  there 
was  a  valid  agreement  entered  into  between  the  parties 
to  the  effect  that  the  owner  of  the  garden,  in  considera¬ 
tion  of  having  been  vested  with  title  to  the  stones, 
has  obligated  himself  to  remove  them  from  his  field 
at  his  own  expense. 


192  Mishnah  :  Baba  Meziah 

is  not  to  be  listened  to.  If,  however,  after 
the  laborer  has  accepted  such  offer,  the  em¬ 
ployer  says:  “Take  your  wages,  and  I  will 
take  back  what  belongs  to  me,”  he  is  not  to 
be  listened  to. 

If  one  places  his  manure  on  public  grounds, 
it  must  be  removed,  by  those  who  desire  to 
make  use  of  it,  immediately  after  it  has  been 
placed  there.  Clay  must  not  be  soaked  and 
bricks  must  not  be  made  in  a  public  thorough¬ 
fare;  clay  may,  however,  be  kneaded  in  a 
public  thoroughfare  when  needed  for  building 
purposes,  but  not  for  the  purpose  of  making 
bricks  therefrom.  If  one  builds  at  a  public 
thoroughfare,  the  materials  must  be  used  as 
soon  as  they  are  placed  there  (so  that  they 
shall  not  be  left  there  for  any  unnecessary 
length  of  time),  and  even  then  if  some  damage 
is  caused,  he  is  liable.  Rabban  Simeon  ben 
Gamaliel  says:  “Building  materials  may  be 
prepared  in  a  public  thoroughfare  for  a  period 
of  thirty  days”  (12). 

(12).  This  view  is  not  the  prevailing  law  (Mai- 
monides,  Commentary  on  the  Mishnah). 


Upper  and  Lower  Owners  193 

Mishnah  VI.  Two  gardens  are  situated  one 
above  the  other  and  some  herbs  grow  between 
them  (13).  Rabbi  Meir  says:  “They  be¬ 
long  to  the  upper  owner,”  and  Rabbi  Judah 
says:  “They  belong  to  the  lower  owner.” 
Said  Rabbi  Meir:  “If  the  upper  owner  would 
desire  to  remove  the  earth  (to  make  it  level 
with  the  adjacent  land),  there  would  be  no 
herbs.”  Replied  Rabbi  Judah:  “If  the  lower 
owner  would  desire  to  fill  up  his  garden  with 
earth,  there  would  be  no  herbs.”  Rejoined 
Rabbi  Meir:  “Since  either  one  is  able  to 
prevent  the  growing  of  such  herbs,  it  must  be 
investigated  from  what  sources  the  herbs 
derive  their  existence.”  Rabbi  Simeon  says: 
“  The  upper  owner  may  take  whatever  he  is 
able  to  reach  with  his  hand,  and  the  remainder 
belongs  to  the  lower  owner”  (14). 

(13) .  The  herbs  grow  on  the  steep  precipice  of  the 
higher  field,  overhanging  the  field  of  the  lower  owner. 

(14) .  His  view  is  the  prevailing  law  (Maimonides, 
Laws  of  Adjacent  Owners ,  Chapter  iv,  Law  9). 


APPENDIX 

Abayi.  Lived  in  Babylonia;  bom  about  the  close  of 
the  third  century  c.E.;  died  in  339. 

Abba  Saul.  Lived  about  the  middle  of  the  second 
century  c.E. 

Akiba  (ben  Joseph).  Lived  in  Palestine;  bom  about 
50  c  .E.;  martyred  at  about  132. 

Alfasi  (Isaac  ben  Jacob).  Born  in  1030  c.E.,  at 
Kala’t  ibn  Hamad,  a  village  near  Fez,  in  North¬ 
ern  Africa;  died  at  Lucena  in  1103. 

Asher  (ben  Jechiel).  Born  in  Western  Germany 
about  1250  c.E.;  died  in  Toledo,  Spain,  in  1328. 

Baba  Bathra.  Name  of  a  Talmudic  treatise  of  the 
Order  Nezikin. 

Baba  Kama.  Name  of  a  treatise  of  the  Order 
Nezikin. 

Bertinoro  (Obadiah  ben  Abraham).  Lived  in  the 
second  half  of  the  fifteenth  century  c.E.,  in 
Italy;  died  in  Jerusalem  about  1500. 

Cab.  A  measure  of  capacity;  one-sixth  of  a  seah. 

Demai.  Name  of  a  Talmudic  treatise  of  the  Order 
Zeraim. 

Denar.  A  silver  coin;  one-twenty-fourth  of  a  gold 
denar. 

Eleazar  (ben  Hisma).  Lived  in  the  second  century 
C.E. 


195 


196  Appendix 

Eliezer  (ben  Hyrcanus).  Lived  in  the  first  and 
second  centuries  c.E. 

Gamaliel  II.  Lived  at  the  end  of  the  first  and  at 
the  beginning  of  the  second  centuries  c.E. 

Gemara.  A  part  of  the  Talmud  containing  discus¬ 
sions  and  decisions,  which  were  put  to  writing 
after  the  reduction  to  writing  of  the  Mishnah. 

Gittin.  Name  of  a  Talmudic  treatise  of  the  Order 
Nashim. 

Hillel  (the  Elder) .  Doctor  of  the  Law  at  Jerusalem ; 
born  about  no  b.c.e.;  died  about  10  c.E. 

Hunah.  Lived  in  Babylonia;  born  about  216  c.E.; 
died  about  296. 

Isar.  A  coin;  one-twenty-fourth  of  a  denar. 

Jaddua  (the  Babylonian).  Lived  in  the  second 
century  c.E. 

Johanan  (ben  Nuri).  Lived  in  the  first  and  second 
centuries  c.E. 

Johanan  (ha-Nappa).  Born  in  Sepphoris,  Upper 
Galilee,  in  the  last  quarter  of  the  second  century 
c.E. ;  died  at  Tiberias,  in  279. 

Jose  (ben  Halafta).  Born  in  Palestine;  lived  in  the 
second  century  c.E. 

Jose  (ben  Judah).  Lived  at  the  end  of  the  second 
century  c.E. 

Jose  (the  Galilean).  Lived  in  the  first  and  second 
centuries  c.E. 

Judah  (ben  Ilai).  Lived  in  the  second  century  c.E.; 
born  at  Usha,  a  city  in  Galilee. 

Judah  (ha-Nasi  I).  Patriarch;  redactor  of  the  Mish¬ 
nah;  born  about  135  C.E.;  died  about  220. 

Ketuboth.  Name  of  a  Talmudic  treatise  of  the 
Order  Nashim. 


Appendix  197 

Kidushin.  Name  of  a  treatise  of  the  Order  Nashim. 

Kor.  A  measure  of  capacity;  seventy-four  lugim. 

Lug.  A  liquid  measure. 

Maimonides  (Moses  ben  Maimon) .  Born  at  Cordova, 
Spain,  March  30,  1135  c.E.;  died  at  Cairo,  Egypt, 
December  13,  1204. 

Meir.  Lived  in  the  second  century,  c.E.;  born  in 
Asia  Minor. 

Mordecai  (ben  Hillel  ben  Hillel).  Born  in  Germany 
at  the  beginning  of  the  thirteenth  century  c.E.; 
died  as  a  martyr  at  Nuremberg,  August  I,  1298. 

Nachman  (ben  Jacob).  Lived  in  Babylonia;  born 
in  the  third  century  c.E. ;  died  in  320. 

Papa.  Lived  in  Babylonia ;  born  about  300  C.E. ;  died 

in  375- 

Perutha.  A  small  coin;  one-eighth  of  an  isar. 

Pundiun  (Dupondium).  A  Roman  coin  equal  to 
two  isars. 

Rab  (Abba  Arika).  Lived  in  Babylonia;  flourished 
in  the  third  century  c.E.;  died  at  Sura  in  247. 

Rabba.  Born  about  280  c.E.,  at  Mechoza,  Baby¬ 
lonia;  died  there  in  352. 

Rashi  (Solomon  ben  Isaac).  Born  at  Troyes, 
France,  in  1040  c.E.;  died  there  July  13,  1105. 

Sanhedrin.  Name  of  a  Talmudic  treatise  of  the 
Order  Nezikin. 

Seah.  A  measure  of  volume  for  dry  objects  and  for 
liquids;  equal  to  twenty-four  lugim. 

Sela.  A  coin  equal  to  one  sacred  or  two  common 
Shekels. 

Shammai.  Scholar  of  the  first  century  b.c.e. 

Shebuoth.  A  name  of  a  Talmudic  treatise  of  the 
Order  Nezikin. 


198  Appendix 

Simeon  (ben  Eleazar).  Lived  in  the  second  century 

C.E. 

Simeon  (ben  Gamaliel  II).  Lived  in  the  first  and 
second  centuries  C.E. 

Simeon  (ben  Yochai).  Lived  in  the  second  century 
C.E. 

Symmachus.  Lived  in  the  second  century  c.e. 
Tarfon.  Lived  in  the  first  and  second  centuries 

C.E. 

Tosafot.  Critical  and  explanatory  glosses  on  the 
Talmud  by  French  and  German  scholars  of  the 
twelfth  and  thirteenth  centuries  c.e. 

Tosefta.  An  extant  collection  of  Mishnah  under 
the  redaction  of  Rabbi  Hiyya  and  Rabbi  Oshaya. 
Yebamoth.  Name  of  a  Talmudic  treatise  of  the 
Order  Nashim. 

Zerachia  (ben  Isaac  ha-Levi  Gerondi).  Lived  in 
the  twelfth  century  c.e.,  in  Spain. 

Zuz.  A  silver  coin;  one-fourth  of  a  Shekel. 


INDEX 


A 

Abandonment,  theory  of,  28; 
public  place,  applies  only  to 
articles  found  in,  36  n. 

Adjacent  Lands,  herbs  growing 
on  precipice  of,  193 

Admission  ( see  Part  Admis¬ 
sion),  must  be  against  in¬ 
terest,  18  n. 

Agency,  how  created,  14  n. 

Agents,  exceeding  scope  of 
authority,  123  n. 

Alimony,  grant  of,  24 

Animal,  when  to  be  considered 
lost,  43-44,  46;  unloading, 
duty  to  help  in,  46-48;  re¬ 
loading,  duty  to  help  in,  47  n. 

Animals  Ferae  Naturce,  title  to, 

4,  15-16  n. 

Arbiters,  documents  referring 
to  selection  of,  25 

Artisans,  are  bailees  for  hire, 

I3I 

Assessment,  document  relating 
to,  21 

B 

Bailee,  trust  of,  in  general,  3 
right  of,  to  sue  third  party, 

5,  52  n.;  possession  of,  is 
that  of  bailor,  5,  51  n.,  52  n.; 
document  of  indebtedness 
deposited  with,  26-27;  pen¬ 
alty  paid  by  thief,  when 
entitled  to,  50-51;  oath  of 

199 


exoneration,  effect  of,  52  n.; 
right  to  take,  cannot  be 
delegated,  53-54  n.;  wit¬ 
nesses,  when  able  to  procure, 
145  n.;  delegation  of  trust 
by,  52-55;  to  a  sub-bailee 
of  greater  liability,  56  n.; 
wife  or  child,  delegated  to, 
67  n.;  uncertain  who  de¬ 
posited  bailment,  56;  fruit 
stored  with,  not  to  sell,  60; 
deduction  by,  for  lees,  etc., 
60-62 ;  making  temporary 
use  of  bailment,  63-66; 
money  deposited  with,  66- 
69;  conversion  by,  69-72; 
gratuitous,  142,  143  n.; 

exempt  from  taking  oath, 
when,  91-92;  for  hire,  142, 
144  n.;  exempt  from  pay¬ 
ment,  when,  92;  stumbling 
not  liable  in  cases  of,  133- 
134;  reason  for  rule,  134-135 
n.;  prima  facie  case,  when 
to  rebut,  144  n. 

Bailment,  bailor  and  bailee 
have  qualified  property  in,  2 ; 
contract  of,  defined,  5;  two 
bailors  laying  claim  to,  57- 
59;  gratuitous,  acceptance 
of  offer  for,  13 1;  the  four 
bailments,  1 42-1 45 

Bailor,  right  of,  to  sue  third 
party,  5,  52  n.;  penalty  paid 
by  thief,  when  entitled  to, 
51-52 

Bargain  and  Sale.  ( See  Sales.) 


200 


Index 


Barter,  defined,  73;  consum¬ 
mation  of,  77,  78  n. 

Borrower,  liability  of,  142, 
145  n.;  exempt  from,  when, 
145  n.,  1 5 1 ;  when  com¬ 

mences,  158;  upon  return  of 
bailment,  158  n.;  agent 

appointed  by,  157  n. 

Burden  of  Proof.  ( See  Plain¬ 
tiff). 

C 

Caveat  Emptor,  rule  of,  17  n., 
80  n. 

Chattels  Real,  defined,  6 

Chose  in  Action,  definition  of, 
2-3 

Claim,  amount  of.  ( See  Part 
Admission.) 

Coins  ( see  Sales,  coins),  be¬ 
longing  to  finder,  when,  30; 
in  a  loaf  of  bread,  31;  to 
be  proclaimed,  when  32,  37 
n.;  found  by  buyer  in  fruit, 
36-37 

Collusion  and  Payment.  ( See 
Presumption.) 

Commodatum,  defined,  145  n. 

Compulsion.  ( See  Overpower¬ 
ing  Force.) 

Conditions  ( see  Sales,  condi¬ 
tions),  precedent  and  sub¬ 
sequent,  1 47-150  n.;  im¬ 
possible,  150  n.;  void,  effect 
upon  contract,  150  n. 

Conduct,  agency  created  by. 
( See  Agency.) 

Consideration,  non-payment 
of,  in  sales,  74,  78-79;  for 
promise  of  marriage,  87  n.; 
becomes  a  debt,  when,  103  n., 
126  n.;  must  be  new  obliga¬ 
tion,  124  n. 

Contract,  breach  of,  105  n., 
125-126  n.;  altering  terms 
of,  125  n.;  contrary  to  law, 
147  n.;  definition  of,  148  n. 

Conversion  ( see  Bailee,  con¬ 


version),  notice  of  restora¬ 
tion,  65  n.;  measure  of 
damages,  69-70  n.;  con¬ 
verter  to  return  article 
converted,  70  n. 

Corporeal,  definition  of,  3 

Court,  of  common  men,  45  n. 

Creditor  ( see  Usurious  Con¬ 
tracts;  Usury),  may  follow 
debtor’s  realty,  when,  17  n.; 
forfeiture  of  debtor’s  estate 
to,  105 

D 

Damages.  ( See  Conversion; 
Lessor  and  Lessee.) 

Deception,  vendor  leaving 
room  open  for,  96-97  n. 

Defendant  (see  Part  Ad¬ 
mission),  need  only  balance 
evidence,  8  n.;  entitled  to 
benefit  of  doubt,  159  n. 

Denial,  defined,  88  n. 

Depositum.  ( See  Bailee,  gra¬ 
tuitous,  for  hire.) 

Divorce,  bill  of,  20 

Document,  execution  of,  has 
effect  of  recording  encum¬ 
brance,  17  n.;  presumed  to 
be  of  no  validity  when  lost, 
24  n.;  properly  executed, 
duty  of  one  finding,  25 

Document  of  Indebtedness 
(see  Lien),  duty  of  one 
finding,  17-19;  surrendered 
upon  identification,  when, 
25-26;  presumed  to  be  paid 
when  lost,  19  n.;  sale  of, 
90-91 

DominantTenement,  defined,  6 
E 

Easement  (see  Servient  Tene¬ 
ment),  definition  of,  6;  by 
necessity,  190  n. 

Elijah  Will  Come,  defined,  27  n. 

Embellishment.  (See  Sales.) 


Index 


201 


Employment  (see  Wages),  con¬ 
tract  of,  defined,  5;  breach 
of,  122-125;  after  part  per¬ 
formance,  1 23- 1 24  n.;  effect 
of  local  custom  upon,  136- 
137;  employee  partaking  of 
fruit  he  handles,  137-142 

Equity,  in  Jewish  jurispru¬ 
dence,  84-85  n. 

Evidence,  152-157,  158-161 

Exchange.  (See  Barter.) 

F 

Father,  disobeyed,  when  to  be, 
46;  precedence  over  teacher, 
when,  49 

Fifth,  added  to  principal,  when, 
88-89 

Finder  (see  Lost  Articles), 
possession  a  priori,  must 
obtain,  11  n.;  must  be  of 
entire  article,  13  n.;  animal, 
right  to  dispose  of,  40-41 ; 
right  to  make  use  of  pro¬ 
ceeds,  41-42  n. ;  ready  money 
not  to  make  use  of ,  42  n. ;  use 
of  books  and  vessels,  42-43; 
exempt  from  taking  charge, 
when,  43;  duty  of,  to  return 
article  many  times,  44; 
compensation  of,  45 

First  Ripe  Fruit,  89  n. 

Fourth  Year,  plantation  of, 
89  n. 

G 

Gift  (deed  of),  duty  of  one 
finding,  20;  delivery,  of  no 
validity  without,  20  n.; 

donee  to  prove,  when,  22  n.; 
irrevocable,  20-21  n.;  death 
of  donor,  to  take  effect 
after,  22-23  n. 

H 

Halizah,  deed  of,  24 


Heave-offering,  not  a  Priest 
partaking  of,  88;  of  the  first 
tithe,  defined,  88  n. 

Hirer,  varying  terms  of  agree¬ 
ment,  126-130;  not  liable 
in  every  case,  129  n.,  130  n., 
lien  of,  128  n.;  liability  of, 
142,  144  n. 

Hiring  (see  Locatio  Rej ), 
contract  of,  construed,  127  n. 

Honesty,  presumption  of.  (See 
Presumption.) 

I 

Identification  (see  Lost  Ar¬ 
ticles),  number,  26  n.;  prob¬ 
able  accidental  marks  of, 
31  n.;  general  impression  of 
form,  32  n.;  amount,  38  n.; 
place,  38  n.;  stating  the 
article  lost,  40;  deceiver 
describing  marks  of,  40 

Incorporeal,  defined,  4 

Infinitive,  use  of,  with  finite 
form  of  verb,  44  n. 

Iron  Sheep,  definition  of,  1 10  n. 

Issue,  joinder  of,  25  n. 

L 

Landlord  and  Tenant,  dis¬ 
possessing  tenant,  162-163; 
notice  by  Landlord,  162  n.; 
notice  by  tenant,  162  n.; 
rent,  landlord  may  raise, 
when,  163  n.;  increase  of 
(see  Usurious  Contracts), 
what  the  respective  parties 
must  furnish,  163-164;  man¬ 
ure,  who  is  entitled  to,  164; 
intercalated  month,  to  whom 
goes  benefit  of,  164-165; 
premises  becoming  unten¬ 
antable,  166-167;  upper 
tenant,  rights  of,  186;  land¬ 
lord  to  repair  pavement,  187 

Leap  Year,  defined,  164  n. 


202 


Index 


Lease,  conflicting  terms  in, 
165  n.;  well  or  group  of  trees 
of  essence  of,  when,  169; 
Sabbatical  year  included  in 
term  of,  when,  176 

Lessor  and  Lessee,  loan  of 
wheat  to  tenants  on  shares, 
1 16;  agreements  letting  land 
to  farm,  168  n.;  lessee  offer¬ 
ing  higher  rent  for  making 
loan,  109-110;  forfeiting 
rights  under  lease,  116-117 
n.;  allowing  field  to  lie 
fallow,  171 ;  duty  of,  to  weed, 
172;  when  allowed  to  aban¬ 
don  field,  172;  right  of,  to 
deduct  from  rental,  173; 
products  of  soil,  to  pay 
lessor  with,  174  n.;  sowing 
crop  other  than  stipulated, 
175;  sowing  flax  or  cutting 
timber,  175;  to  surrender 
premises  in  good  condition, 
.175  n- 

Lien  ( see  Hirer;  Pledges), 
in  documents  of  indebted¬ 
ness,  17  n.;  implied,  19  n.; 
of  artisan,  13 1  n. 

Loan,  definition  of.  ( See  Com- 
modatum.) 

Locatio  Rei,  defined,  144  n. 

Lost  Articles  ( See  Finder; 
Identification;  Proclama¬ 
tion),  title  to,  4;  oath,  ad¬ 
ministered  to  persons  laying 
claim  to,  7-1 1;  must  have 
actual  possession,  8  n.;  im¬ 
position  of,  is  rabbinical, 
9  n.;  reason  for  form  of,  10 
n.;  admission  and  procure¬ 
ment  of  witnesses,  12;  res 
adjudicata,  subsequent  to, 
12  n.  appointment  of  agent, 
13;  picked  up  by  one  on  be¬ 
half  of  another,  12-13  n-i 
child,  wife  or  servant,  found 
by,  16;  belonging  to  finder, 
30;  reason  for  rule  ( see  Aban¬ 
donment),  when  articles  are 


new,  32;  to  be  proclaimed, 
32;  value  of  articles,  87; 
behind  fence,  in  dung-heap 
or  wall,  33;  in  premises 
occupied  by  successive  ten¬ 
ants,  34  n.;  non-Israelites, 
not  surrendered  to,  34  n.;  in 
a  city  the  majority  of  whose 
inhabitants  are,  35  n.;  store 
found  in,  35;  Persian  Law, 
according  to,  35  n.;  Ham¬ 
murabi,  law  of,  according  to, 
36  n.;  money-changer’s 
stand,  found  in  front  of,  36; 
private  place,  found  in, 

.  36-37  n.;  when  loser  was 

heard  to  despair  of  regain¬ 
ing,  38-39  n.;  precedence  in 
returning,  49 

M 

Manumission,  deed  of,  20 

Marriage,  of  minor  female,  25 
n.;  contract  of,  what  con¬ 
stitutes,  87  n. 

Minority,  definition  of,  24  n. 

Money-changer,  money  de¬ 
posited  with,  67 

N 

Negligence,  degrees  of,  142- 
143  n.;  party  guilty  of,  to 
suffer  inevitable  loss,  57  n. 

Non-Israelites.  ( See  Lost 
Articles;  Usury.) 

Notice.  ( See  Conversion; 
Landlord  and  Tenant;  Wall.) 

Nudum  Pactum ,  when  trans¬ 
action  is,  79  n. 

O 

Oath  ( see  Bailee;  Lost  Ar¬ 
ticles),  when  administered, 
7  n.;  effect  of,  7  n.;  defen¬ 
dant,  administered  to,  8  n.; 
hearsay,  not  administered 


Index 


203 


Oath — Continued 

upon,  54  n.;  of  adherence, 
156  n.;  plaintiff,  when  ad¬ 
ministered  to,  179-180  n. 

Occupancy,  title  by,  4 

Overpowering  Force,  definition 
of,  143  n.;  what  constitutes, 
143-146 

Overreaching,  what  constitutes 
79,  86;  law  of,  applies  to 
vendor,  81;  has  unlimited 
time,  81  n.;  to  a  merchant, 
81;  to  personalty  having  a 
pretium  faciendi,  93  n. ;  does 
not  apply,  deceived  party 
having  knowledge,  82  n.;  to 
realty,  slaves,  etc.,  90;  ven¬ 
dee  not  acquiring  immediate 
possession,  91  n.;  remedies 
of  overreached  party,  82  n.; 
in  cases  of  coins,  83;  by 
means  of  words,  93. 

P 

Part  Admission,  defendant 
making,  effect  of,  86,  185- 
186  n.;  when  incapable  to 
take  an  oath,  153  n.,  186 
n.;  claim,  must  be  part  of, 
155  n.;  amount  of,  in  such 
cases,  86 

Penalty.  ( See  Promise;  In¬ 
sincere;  Thief.) 

Perjury,  one  suspected  of  ex¬ 
tortion  not  suspected  of,  9- 
10  n. 

Personal  Property,  definition 
of ,  1 ;  exempt  from  execution 
after  death  of  debtor,  182  n. 

Perutha,  when  sufficient,  87 

Pignus,  definition  of,  5 

Plaintiff  ( see  Oath,  plaintiff), 
cannot  prove  claim  with 
oath,  9  n.;  has  burden  of 
proof,  9  n.,  56  n.,  157  n. 

Pledge.  ( See  Pignus),  taken 
by  order  from  court,  181  n.; 
pledgee,  acquires  lien,  182  n.; 


liability  of,  132;  letting  out 
pledge,  133;  violating  two 
commandments,  when,  183- 
184;  saves  debt  from  being 
barred  by  limitations,  182 
n.;  to  be  returned  daily  to 
pledgor,  when,  182,  183  n., 
cannot  be  taken  from  a 
widow,  183 

Possession,  is  presumptive  evi¬ 
dence  of  ownership,  8  n.; 
by  finder,  what  constitutes, 
11  n.;  leading  animal,  12  n.; 
riding  on  animal,  12  n.; 
falling  does  not  constitute, 
15;  field,  is  considered  as,  15 

Postscript,  attached  to  docu¬ 
ments,  27 

Potential  Existence,  115  n. 

Presumption  ( see  Possession), 
of  honesty,  7-8  n.;  77, 

180  n.;  of  knowledge,  on  part 
of  purchasers,  17  n.;  of 
collusion  and  payment,  18  n., 
19  n.;  of  preemption,  159- 
160  n. 

Priest,  seeing  lost  animal  on 
cemetery,  46;  his  share  of  the 
dough,  88 

Principal  and  Agent.  ( See 
Agency;  Agents.) 

Proclamation,  test  of,  38; 
manner  of,  39 

Promise  ( see  Consideration), 
for  promise,  76;  insincere, 
when  considered  as,  106  n. 

Property,  in  possession,  1-2; 
in  action,  2;  absolute,  2; 
qualified,  2 

Proselyte,  defined,  111  n. 

Protest,  letter  of,  24 

Public  Thoroughfare,  use  of, 

192. 

Q 

Quantum  Meruit,  employees 
entitled  to,  when,  123  n. 

Quasi  Contract,  between  bailor 


204 


Index 


Quasi  Contract — Continued 
and  sub-bailee,  56  n.;  be¬ 
tween  employer  and  employ¬ 
ees,  123  n. 

R 

Realty,  cannot  be  stolen,  91- 
92  n.;  always  deemed  to  be 
in  possession  of  owner,  165  n. 

Reciprocity,  doctrine  of,  34- 
35  n.,  hi  n. 

Recording,  encumbrance  on 
realty,  19  n. 

Release,  from  debt,  duty  of 
one  finding,  20 

Reloading,  duty  to  help  in. 
( See  Animal.) 

Rent  ( see  Landlord  and  Ten¬ 
ant),  when  due,  103  n 

Res  Ad  judicata.  (See  Lost  Ar¬ 
ticles.) 

S 

Sabbatical  Season,  defined,  177 
n. 

Sages,  definition  of,  19  n. 

Sale  and  Exchange,  defined,  5 

Sales  (see  Overreaching;  Usuri¬ 
ous  Contracts),  lees,  loss  of, 
who  is  to  suffer,  62-63  n.; 
law  of,  what  includes,  73; 
consummation  of,  accord¬ 
ing  to  Law  of  Moses,  73; 
as  modified  in  the  Talmud, 
74-75;  subject-matter,  who 
suffers  loss  of,  73,  75;  coins, 
sale  of,  77—78 ;  condition 
implied  in  law,  80  n.;  seller, 
giving  vendee  fruits  from 
various  fields,  94;  merchant 
permitted,  95-96;  liable  as  a 
gratuitous  bailee,  74,  75; 
mixing  strong  wine  with 
mild,  94-95;  mixing  lees  of 
one  wine-jug  with  another, 
95;  not  to  embellish  articles, 
97;  present,  subject-matter 


not  being  in  existence,  1 13  n. ; 
subject-matter  being  in  state 
of  embryo,  114  n. 

Sanctuary,  property  belonging 
to,  mal-appropriation  of,  87 
n. ;  redemption  of,  89 ;  law  of 
overreaching  affecting  sale 
of,  90-91 

Servient  Tenement,  definition 
of,  6;  tenant  may  make  use 
of,  when,  187  n. 

Slaves,  classed  as  realty,  90  n. 

Speak,  duty  to,  14  n. 

Statement  (unsworn),  effect 
of,  7  n. 

Store,  considered  a  public 
place,  36  n. 

Storekeeper,  money  deposited 
with,  69;  distributing  gifts 
to  children,  96;  market  price, 
selling  below,  96;  sifting 
pounded-beans,  96-97 

Stumbling,  is  ordinary  neg¬ 
ligence,  134,  135  n. 

T 

Teacher,  has  precedence  over 
father,  49 

Theft,  law  of,  not  applicable 
to  realty,  etc.,  91 

Theft  and  Loss,  defined,  143  n. 

Thief  (see  Theft),  damages, 
double,  51;  fourfold,  51  n.; 
fivefold,  51  n.;  uncertain  who 
the  robbed  party  is,  56; 
restoration,  notice  of,  65  n.; 
personal  return,  when  to 
make,  88  n.;  one-fifth,  when 
to  add,  89 

Title,  how  acquired  in  general, 
4;  to  a  thing  not  possessed 
by  vendor,  102  n. 

Transgression,  defined,  143  n. 

Trees  (see  Lease),  producing 
fruit  when  sold  for  fuel,  161 
n.;  deposited  in  the  field  of 
another,  162;  falling  into 
public  thoroughfare,  190 


Index 


205 


u 

Unloading,  duty  to  help  in. 
(See  Animal.) 

Upper  and  Lower  Owners,  their 
respective  rights,  185;  lower 
owner  refusing  to  rebuild  his 
story,  187-188 

Use,  made  of  property  be¬ 
longing  to  another,  188- 
189  n. 

Usurious  Contracts,  debt  paid 
with  merchandise,  100  n.; 
increase  of  rent,  102- 103; 
increase  of  purchase  price, 
103;  vendee  of  land  giving 
part  payment,  104;  selling 
another’s  merchandise  at 
half  profits,  107,  no;  raising 
animals  at  half  profits,  108- 
110;  retailer  to  bear  no 
losses,  108  n.;  to  bear  all 
losses,  no  n.;  future  sale  of 
fruit,  112;  when  market 
price  is  known,  113  n.;  when 
vendor  is  possessed  of  mer¬ 
chandise,  1 13-1 14;  when  sub¬ 
ject-matter  is  manure,  115- 
116  n.;  loan  of  merchandise 
to  be  paid  in  kind,  116,  118; 
labor  paid  with  labor,  119- 
120 

Usury,  rabbinical  and  biblical, 
98,  99;  recovered  by  debtor, 
when,  99;  defense  of,  not 
available  at  law,  99;  living 
in  debtor’s  premises,  101- 
102;  question  of,  cannot  be 
raised  when  there  is  no  debt, 
103  n.;  non- Israelites,  from 
and  to,  no;  money  belong¬ 
ing  to,  may  be  lent  upon,  1 12 
n.;  among  the  neighboring 
nations  of  the  Jews,  115  n.; 
advance  and  postpaid,  120; 
persons  violating  command¬ 
ments,  relating  to,  12 1; 


consisting  of  mere  word 
121 

W 

Wages,  when  collectible,  177- 
178 ;  laborer  employed  by  the 
hour,  178  n.;  violating  com¬ 
mandments  concerning  pay¬ 
ment  of  177  n.;  employee 
making  no  demand,  178;  ap¬ 
plies  to  payment  for  use  of 
implements,  178;  employer 
giving  order  to  third  party, 
179;  proselyte,  applies  to, 
1 80-1 81;  collected  with  oath, 
when ,  1 79- 180;  employee 

not  bound  to  accept  material 
as,  191 

Wall,  falling  into  public  thor¬ 
oughfare,  190;  owner  to 
prove  it  was  properly  built, 
190  n.;  notice  given  by 
court  for  removal  of,  190  n.; 
falling  into  adjacent  land, 
190-191 

Warranty,  realty  sold  with, 
right  of  grantee,  17-18  n. 

Watchman,  his  right  to  par¬ 
take  of  fruit,  142 

Well,  when  of  essence  of  lease. 
(See  Lease.) 

Wife  (see  Bailee;  Lost  Arti¬ 
cles),  right  of,  to  sell  hus¬ 
band’s  property,  24  n. 

Wine,  not  to  be  sold  when 
adulterated,  95 

Will,  duty  of  one  finding,  20; 
legator  consenting,  22  n.; 
heirs  of  legator  consenting, 
23  n.;  delivery  of  no  validity 
without,  20  n.;  revocable, 
22  n. 

Wrong,  done  by  means  of 
words,  93;  party  guilty  of, 
to  suffer  inevitable  loss, 
57  n. 


\ 


L 


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